A short history of European legal history summary, Sintesi del corso di Storia Del Diritto

Scarica A short history of European legal history summary e più Sintesi del corso in PDF di Storia Del Diritto solo su Docsity! 1 History of law PART 1: ANCIENT TIMES 1. ROMAN LAW The city of Rome was probably founded in the early part of the seventh century BCE. It was initially a monarchy and then a republic. In Rome, the government was formed by the senate and two appointed magistrates. Rome expanded its control throughout the Mediterranean. The Empire was in 253 divided into two parts, to control better the territories. In 476, Germanic troops invaded the city and the Roman Empire fell. The Eastern Empire survived till 1453. At the base of the history of law, we must start from roman law. Roman culture was influenced by Greek civilization in literature, philosophy, science and architecture. But Roman law was without doubt the most sophisticated and highly developed legal system from Antiquity. It was also the most influential as regard later history. It was the rediscovery and study of Roman law in the late eleventh century that triggered the development of European legal science and the civil law tradition. Roman law was a product of many centuries of legal development. It was the pragmatic genius of the Romans and not the systematic thought of the Greeks that took Roman law to such heights. They invented the civil law (ius civile), understood as knowledge of law (jurisprudentia), notitia and scientia iuris. PHASES OF ROMAN LAW 1. Pontifices (patricians) in archaic Rome (VII-V C). They knew unwritten customs (mos). They wrote list of causes of action (legis actiones) so the rituality 2. The emergence of the Twelve Tables as secular law to solve conflicts 3. Emphasis on private law 4. Emergence of specialists in law (iurisperiti, iurisprudentes, iurisconsulti, iuristi). Role of praetors (in iure and in facto) THE RISE OF ROMAN LAW Roman law began as a system to adjudicate conflicts among individuals and so a system to guarantee order. This system was identified in the ius civile. Questions of law and actual conflicts were presented to a body of patricians who were also priests (pontifices). These patricians decided whether certain behaviours conformed 2 to social expectations and they suggest what could be done. These pontifices followed oral tradition that captured unwritten customs (mos). Their responses were like secrets truths and required no proof. Law was rigid and formal. There was a list of causes of action that litigants could invoke (legis actiones). Different causes of action entailed different procedures, parties and end of the proceedings. Litigants invoked these causes of actions before the pontifices. This invocation required the taking of a ceremonial oath with certain words and certain acts. This ritual had to be followed accurately. The oldest written source from this period is a set of rules: 12 Tables. 12 TABLES The Twelve Tables list the obligation of litigants to appear in court, sanctioning them if they did not. The Tables also spell out procedural rules, regulate transactions and rules of communal life (private law). The publication of the Twelve Tables was important because a secret law was made public and marked the appearance of the lex. The law would operate among community members. The Twelve Tables started that process that distinguished religious rules from communal life rules. Initially their interpretation and application were still in the hands of the pontifices, then secular officers began taking their place. THE RISE OF CIVIL LITIGATION From around 367 BCE, special officials called praetors were nominated annually to oversee the resolution of conflicts. Initially they followed existing procedures but then they started modifying them. The first and most important change was the division of adjudication into two distinct parts, the first dealing with question of law and the second with question of fact. In the first part the praetors decided on the admissibility of the case. It was concerned with identifying the legal issues at stake and the appropriate remedy. It established the legal question. In the second part the actual adjudication took place. The judge had to ascertain the facts of the case: he heard the parties and considered their evidence. After he determined the facts, he applied the solution that the praetor had identified in the previous stage, so he applied law in concrete circumstances. This division was fundamental to the development of law because jurists understood that the normative order had to be divided from the chaos of everyday life. So, the praetors started formulating general rules that could be applied to all similar cases. 5 Initially jurists had no special preparation, they simply lived in communities and were involved in social affairs. They were trained in rhetoric and their instructions became a sort of school, where people could listen and learn. The following of masters became proper schools, and two of them became rivals: the Proculians and the Sabinians. They approached differently to legal analysis, one adhering more closely to the letter of the law and the other caring more about material justice. LEGISLATION Legislation was used to create legal norms. Assemblies and plebiscita passed statutes (leges) and the Senate prescribed certain solution (senatus consulta). In the Principate the oratio principis allowed emperors to deliver speeches telling the Senate which norms it should adopt. The accumulation of imperial legislation led to the appearance of collections of imperial constitutions such as the Codex Gregorianus, which included legislation from Hadrian to Diocletian or also the Codex Theodosianus. This kind of legislation tended to add and explain rather than modify. Also, it was concerned with public and not private law. Legislation also covered criminal law, testamentary succession and family law. Emperors acquired growing legislative power justifying it saying that they were judges and jurists. They published edicts, rendered judgements, gave answers to questions of law. These laws were often written by other jurists. Jurists insisted on their role as custodians of legal methodology and juridical thought. IUS GENTIUM Roman law was applied exclusively to the citizens of Rome. Foreigners had no right to Roman law, and they followed the law of their birthplace. But this system evolved, in fact praetors started writing the ius gentium (Law of Nations, People, Gentiles or Tribes). A new figure emerged: the praetor peregrinus. So, we had two Ius Ius civile → norms particular to a specific community Ius gentium → norms common to all. Ius gentium was an universal legal system that could fit any person of any community or legal tradition. The praetor peregrinus had to identify the legal principles shared by all humans. This praetor had a much greater liberty to add, subtract or change the law. This law was anchored in human experience and so it represented human reason and the nature of the things. It was also considered as a ius naturale because it was so reasonable and compelling that only nature could be responsible for its creation. ROMAN LAW IN THE EMPIRE 6 In third century, CE, under Caracalla, Roman citizenship was extended to all free residents of the empire. Roman law was now the commons stock of all imperial subjects. Rather than making the territory Roman, they transformed foreigners into citizens. Roman law theoretically remained the same, but the definition of who Romans were changed. An important consequence was a series of peripheral or provincial Roman legal systems. These systems were influenced by local conditions and customs. This extension accelerated the fragmentation of Roman law because the result was an extremely complex structure that allowed the development of multiple and parallel legal systems that were different. Roman jurists justified this wrong development of the legal pluralism saying that it was due to the different and irreconcilable customs and cultures. They opened the door for the massive penetration into their legal system of non-Roman concepts and legal arrangements. This amalgamation of Roman and non-Roman was enhanced after the Western Roman Empire fragmented. This became evident when the Visigoths proceeded to recompile the local roman law. The Lex Romana Wisigothorum was considered in the Middle Ages a trustworthy source for late Roman law. It reproduced a simplified and abbreviated version of Roman law based on very few sources that were repeatedly used and cited. In 285 CE Diocletian divided the Empire in two parts, to better facilitate the administration of this vast polity, naming two rulers and two capitals. In 306 Constantine materialized this division erecting Constantinople. Western Roman Law became heavily influenced by Germanic legal traditions. Eastern Roman Law was influenced by the Hellenistic culture. The Byzantine Law gave rise to the most important compilation of Roman law: The Corpus Iuris Civilis. Fall of the Western Roman Empire: 4th September 476 Odoacer forced Romulus Augustulus to abdicate. Odoacer started rule Italy and negotiate with Emperor Zeno of Costantinople, which accepted him as his own viceroy of Italy. Odoacer was Rex Italiae, not the Emperor. Justinian was the Eastern Roman emperor from 527 to 565. During his reign, Justinian sought to revive the empire’s greatness and reconquer the lost western half of the historical Roman Empire. Justinian was adopted by his uncle Justin, Emperor from 518. He was a native speaker of Latin. He studied jurisprudence, theology and Roman history. He became Emperor in 527. There were military campaigns to regain Italian territories thanks to his talented generals, Belisarius and Narses. (Gotes Wars) 7 CORPUS IURIS CIVILIS Justinian achieved lasting fame through his juridical reforms, particularly through the complete revision of all Roman law, something that had not previously been attempted. The totality of Justinian legislation is known today as the Corpus Iuris Civilis. The Corpus Iuris Civilis was a collection of various pieces of Roman law. It was prepared by a group of experts with the aim of guarding the glory of Roman law. It consists of the Codex Iustinianus, the Digesta or Pandectae, the Institutiones and the Novellae. CODEX: (534) The Codex fused the Codex Gregorianus, the Codex Hermogenianus and the Codex Theodosianus, adding to them the most recent imperial legislation and omitting what was considered obsolete or contradictory. The second edition of the Codex included decisions by Justinian. The Code was arranged according to subject matter and inside each subject laws were chronologically ordered. DIGEST (530-533) The second part was issued in 533: it compiled the writings of the great Roman jurists such as Ulpian along with current edicts. The 10.000 fragments are taken from around 2000 works by 40 jurists (Papinian, Gaius, Ulpianus, Modestin, Paul = II and III century AC). Two-fifths of the Digest consist of the writings of Ulpian, while around one-sixth belongs to Paulus. The Digest’s organisation is complex. Each of the fifty book is divided into several titles, each containing several extracts and many of the extracts have several parts or paragraphs. The Digest dealt with important areas of private law, family law, property law, contract law and inheritance. LITTERA FLORENTINA These are manuscripts written between 533 and 555 CE. It is an almost unique witness of the original Justinian Digest. Justinian gave to the legislators the possibility to alter the Roman Law. INSTITUTES (533 CE) This third part was intended as a sort of legal textbook for law schools. Under the supervision of Tribonian, Theophilus and Dorotheus had to extract statements about the basic institutions of Roman Law from the teaching books of Gaius, Ulpian, 10 The Empire’sl of the new religion affected Christianity. A sign was the Romanization of the Church. Christianity was deeply influenced by Hellenistic culture, for the traits and for the language. Moreover, Christianity contained many different communities self-regulated. With the creation of the Latin Christendom, Rome became the main Christian centre and Latin replaced Greek. After Christianity became the religion of the Empire, an additional system of law (Church Law + Roman Law), and a series of Roman authorities began regulating Christian life. This was the base for the process of centralization that made the Church what it is today: a structure of authority with a more or less fixed canon of beliefs and a set of authorized texts. Pagan roman emperors were considered representative of the gods. The emperors were obligated to ensure that the Gods would be worshipped. In the same way Christian emperors declared themselves as defenders of the correct faith and responsible for its propagation. They solved conflicts among Church members and communities and decided who was right or not in faith. Emperors also called meetings to declare the basic tenets of Christianity: The Council of Nicaea, the Council of Constantinople and the Council of Carthage. By the end of this process, Christianity and its dogma became a matter of imperial law. CONVERSION The emperors legislated also in the direction of the conversion for Pagan people granting converts special privileges. They also acted with violence destroying Pagan temples or confiscating Pagan treasures. In the 340s and 350s pagan people were punishable with death for the law. Even Saint Augustine affirmed that violence and coercion had to be used to convert and prohibit paganism. THE CHURCH BECOMES A ROMAN INSTITUTION With the fragmentation of the Western empire, the identity between Church and Roman law was stronger. Bishops were fashioned after Roman consuls or praetors. They received judicial, administrative and legislative powers because they were convinced that they had to rule according to the Roman law and its procedures. Bishops also met in assemblies to coordinate their activities as well as to legislate. They were exempt from public service, controlled extensive properties and enjoyed great prestige. Bishops undertook responsibilities as state officials, overseeing inheritance and succession, settling private disputes and operating schools. Dioceses were conceptualized as Roman units and Church was constructed as a corporation (universitas), allowing them to own property, receive gifts and make 11 contracts. Church buildings were called basilicas after the old Roman spaces where the political life happened. Church canons used the imperial style and were read, interpreted and obeyed as if they were imperial decrees. Roman jurisprudence became a vehicle to discuss theological questions and bishops responded to petitioners using formulas from Roman law. A result of this mixture was the “Divine Institutes”. The Church preserved the Roman language and its forms of oratory, expression, literature, architecture and art. We can say that Christianity influenced Roman society and vice versa. In the centuries following the fragmentation of the Western Roman Empire, Christianity spread throughout Europe and so did Roman culture and law, even though it was long and complicated. Conversion efforts were fairly feeble, especially in large populations. With the foundation of the monastic orders and the gradual affirmation of the papacy, the Church expanded, initially westwards (FR, DE, UK) and then also into Poland, Denmark, Sweden, Moravia and Baltic States. In this way, Church law but especially Roman law and culture were introduced in all Europe: language, art, administration, legal procedures, way of thinking etc. The diffusion of Romanized Christianity resulted fundamental in the making of the Europe. PART TWO: THE EARLY MIDDLE AGES 1. AN AGE WITH NO JURISTS: 500-1000 CE The religious unification of Europe led to the urgence of the imposition of canon law. Meanwhile in Europe, the German and the Barbarian people started to invade all the territories of the former Western Roman Empire. These groups established kingdoms in Europe and cultures started to merge. In 800 a combination of local, Germanic, Roman and canon law crystallized. EARLY CANON LAW Church leaders had always legislated, but the character of Christian law was greatly modified. The normative system was identified as canon law, from the Greek which means rule. Canon law was a mixture between a large part of Roman law and some catholic laws. It was theoretically based on a spiritual authority that was to be levied only on Christians. Bishop’ growing responsibility for producing and applying norms allowed the Church to expand its legal activities and increase the volume of its law. Bishops identified themselves as Pontifex Maximus as well as popes which insisted on their superiority. Canon law had to be compiled and the enterprise was 12 taken by some scholars, especially during the reign of Charlemagne, who wanted to create authorized versions of important texts and distribute them in the realm. The plurality of sources and the absence of a general and authoritative compilation led to the emergence of a great assortment of Canon laws that were distinct. Local churches formed their own collections, but also forgeries (falsi) were created. One famous example is the production and dissemination of false papal decrees, which mixed authentic materials with newly invented ideas. This collection of decrees belonged to Isidor Mercator and was formed by 60 letters and decrees attributed to early popes. These decrees included speeches about the authentic canons of Church, instructions regarding liturgy, sacraments, and marital law. Another important forgery was the Donation of Constantine. This document affirmed that Constantine had transferred imperial powers onto Pope Sylvester I and his successors. Constantine recognized the pope as the successor of Peter and Paul, Rome as the main Christian centre and allowed the Pope to appoint secular rules. This document became essential for the disputes between emperors and popes, and so the problem of the division of the powers. THE CONTINUING PRESENCE OF ROME The predominance of canon law in early medieval Europe ensured the continuing presence of Roman law. Roman law was taught in many abbeys and cathedral schools and was used when canon law had no solutions in determinate cases. Early Christian texts, such as the Rule of St. Benedict or the Etymologiae of Isidor of Seville made references to Roman law → ECCLESIA VIVIT LEGE ROMANA In territories under the control of the Eastern Roman Empire, the Corpus Iuris Civilis was known and used and legal transactions were still based on Roman law. In the Frankish Empire, clerks imitated Roman notarial practices to draw up donations, testaments, sales and marriage contracts. The same thing happened in Gaul, in Leon and in Galicia. THE GERMANIC ELEMENT The movement of the Germanic groups was haphazard, carried out in small units and placed their members in such intense contact with other cultures that it is difficult to assert what their original mores had been. The attitude to law was primitive, relied on orality and supported no central institutions, no clear procedures, and no set structures. They had a different organization of public life. 15 restored clerical discipline, recovered Church properties and encouraged the use of authorized collections of law. Charlemagne ordered the writing down of local laws and the Romanization of norms of Germanic origin. He promulgated edicts that introduced centralization. He wanted to establish the authority of his court and his empire remained a fragmented structure with a great diversity of regimes, norms and legal sources. WERE THERE NO JURISTS? Early medieval law embodied the personal duty to behave correctly. This duty was anchored in family and communal obligations as well as in religious duties. Norms were oral and were learned and negotiated living in a community. We had the participation of God, and if not, this use of other procedures to discover the truth. This system required no jurists, but the experts were not lacking. The elders agreed on how to adjudicate conflicts and the theologians indicated to believers how they should behave. There were also canon lawyers and moral theologians who defined the structure of authority inside the Church. Emperors and kings continued to employ legal advisors who helped them collect, systematize and write down local and canon law. Thanks to the expertise, legal glosses and commentaries began appearing in Europe. The study of law was so intense that scholars divided among the antique and the moderni. Roman and canon law also sustained the work of scribes and notaries, which produced legally efficient documents. 2. LORDS, EMPERORS AND POPES AROUND THE YEAR 1000 The year 1000 carries an enormous weight in the European imagination. It stands for the maturity of an early medieval society that soon after would disappear. This story of change begins with chaos. After the demise of the Western Roman Empire, no other polity emerged to replace it, and this led to extreme fragmentation. Main events: ❖ Conversion ❖ Romanization ❖ Germanic, Slavic and Viking groups settled and conquested. ❖ Muslim invasions ❖ Charlemagne attempt of unification ❖ Decline of commerce → susbsistence economy ❖ Feudalism 16 FEUDALISM In the ninth, tenth and eleventh centuries many parts of Europe shared several fundamental characteristics that were lacking in the earlier times. Feudalism was based on an agreement between parties to constitute a personal relationship. Feudalism grew as a series of relations of personal dependency between powerful individuals (lords) and subject populations (vassals). The lord protected and cared for vassals and they had to be loyal and obedient and give their lord aid, service and advice. Feudalism appeared as a deeply ritualized affair in an elaborate ceremony identified as homage. Feudal relations were initially intended as military protection, but then it became economic protection so included the duty to provide subsistence. Because of extreme economic instability and political disorder, so lack of public security, landholding individuals and communities relinquished their control over their properties, which were transferred to a lord in exchange for protection. Direct vassals of the lord could administrate these lands or have some offices. The payment of the vassals was mainly symbolic. Lords played also as judges, deciding on what was the customary law of the land. They policed their territories, adjudicated conflicts and dispended punishment. They collected taxes and applied the norms that governed the community. Soon feudalism lost most of its initial purpose as a defensive mechanism and evolved mainly into an economic system of exploitation. Rights and obligations became hereditary for both lords and vassals and the degree of exchange between them substantially diminished. This system of personal dependency dominated the European landscape. It expanded throughout Europe, reaching present-day France, Italy, England, Spain and the Slavic territories. A FEUDAL SOCIETY In the year 1000 most Europeans lived on rural estates, where they were tied as vassals to a lord who exercised jurisdiction over them. The lord had the three powers. He made the rules, he applied them and adjudicated conflicts. He interpreted in his way law. In Feudalism, the lords were the vassals of other lords. Because lords’ vassals were not the emperor’s vassals and so the emperor could not directly request their collaboration. This pyramid of command guaranteed the loyalty of important lords and the submission of their vassals, but it also imposed restrictions on the emperor. He was not able to directly command the vassals of his vassals and so when he wanted them to do something, he had to depend on the mediation of the lords, who could ask for concessions in return. Soon, some lords began to expand their 17 jurisdiction. They diminished the power of their peers and controlled them by summoning them to the courts and converting them into their servants. Lords became members of royal households but lost their power base in the countryside where their vassals resided, because they were absent. Kings encouraged the growth of cities, recognizing them as free because not under obedience to a feudal lord. Kings placed them and their inhabitants, under the king’s direct authority. This policy was successful, cities grew all over Europe and the kings established themselves as supreme adjudicators, so arbiters between lords, establishing royal courts → ENGLISH COMMON LAW LORDS, EMPERORS AND CHURCH AUTHORITIES The Carolingian Empire was headed by Charlemagne who was declared in 800 Emperor of the Romans. In this way, all the successive emperors were both kings and emperors, but also involved in religious matters. This mixture of powers became a problem that in the long run led to the Investiture Conflict → What were the correct relations between the pope and the secular powers? Who was superior to whom? Could popes intervene in secular matters? Could emperors do so in religious affairs? In the roman tradition, Roman emperors were high priests (pontifices maximi) who were central in the Roman religious cult. In the medieval Europe, popes habitually appealed to Germanic monarchs to assist them. These monarchs portrayed themselves as protectors of the Church. They legislated on religious matters and limited Rome’s control and autonomy in their territories. With the rise of powerful lords, the autonomy of Church was compromised. These lords recognized bishops as feudal lords granting them jurisdiction over territory and people. It became vital to guarantee that these ecclesiastical seigneurial domains not fell into the wrong hands. The overlord had to control the nomination of bishops. Pope Gregory VII began a reform with the aim of obtaining control over there coveted offices. The Dictatus Papae listed 27 important papal resolutions. It denied German emperors the right to nominate and depose bishops and invest them with their pastoral rod. Church was found by God, so if emperors disobeyed papal orders, the pope could depose them and free their vassals of their oath of obedience. The Dictatus Papae secured the primacy of pope within the Church. Only the pope could establish new laws, form new congregations, transform the status of existing institutions, and control Church officials. He could move bishops between dioceses, 20 The legal revolution that took place in Europe in the 12th and 13th century was shaped by three elements: ❖ Discovery and reconstitution of ancient Roman texts → Corpus Iuris Civilis ❖ Adoption of a new method to analyze them → Scholasticism ❖ Invention of new environment in which to do so → Universities RECONSTRUCTING ANCIENT TEXTS Scholars in Europe knew for centuries about the existence of the 16th century compilations of Roman law ordered by Justinian. An abbreviated version of the Code was available and so were parts of the Institutes, but the Digest was not. A copy of Digesta reached Bologna. Several individuals began reconstructing the legal compilations undertaken by Justinian collecting different segments, put together in what was believed the original design. The final product satisfied the scholars, that believed they had the real and original Corpus in their hands. THE METHOD Scholars began studying it. The methodology was innovative. The Scholasticism was based on the assumption that Roman texts were imbued with a hidden harmony. They began with a philological analysis of the texts, their terminology, order and phrasing. They asked questions and debated answers. The dialectical thinking was used comparing passages to one another. The various parts could not be contradictory, so scholars employed logical arguments in order to demonstrate that such was the case. DISTINCTIO: They analysed two fragments that seemed similar yet pointed to different solutions and they proceeded to demonstrate that the fragments appeared identical, they were actually profoundly distinct. The solutions offered could be diverse without there being a contradiction. What appeared at first glance as a contradiction was instead part of a coherent system in which all the different pieces pointed to the same rationale. The scholars wanted to reveal the criteria that guided Roman jurists and the techniques that organized their reasoning. They wanted to extract the rule that explained their consistency, so the inner core of Roman law. THE ENVIRONMENT 21 The individuals engaged in these debates mainly taught or studied in the various study centres and universities that appeared in Europe in the late medieval period (Bologna) We have to remember that legal knowledge in the medieval period spread through manuscripts. We have a new figure the Glossator: person who makes glosses. *GLOSSATOR: a medieval jurist working in a period starting from Irnerius period and ending in the first half of 13° century. *SUMMAE: summary = a way to summarize a text, in this case roman texts; discussing a whole book, such as the Institute . Medieval jurists also started to make *QUAESTIONES (Question): this helped to improve the dialectic, the reasonement. They posed questions to their students. Usually those questions were effective LEGAL PROBLEMS/ This QUAESTIONES were usually EX FACTO EMERGENTES so depended on real problem (casus), they were not just an abstract question. The students had to solve those problems. Normally, the classes were divided into 2 parts since the dialectic process is compose of PRO and CONTRA: A part of the class was for a solution. The other part for another and at the end the teacher explains which of them was the real one. Irnerius became the first “Lucerna iuris”, the first illuminator of Bologna legal science tradition. But before Irnerius there were legal teachers? Not in the sense of what Irnerius and is successors started to do. Irnerius had been the founder of a new tradition. To start a tradition, you need a founder. Who was Irnerius? What do we know about him? We have only few sources. He was close to Matilde of Canossa, a feudal lord in the centre of Italy dealing with the Pope and with the Emperor. Irnerius took part in a trial as lawyer (causidicus). He was a teacher of liberal arts and a notary (someone able to write in Latin and having a legal culture and using some rules). Irnerius’ name comes from the German tradition, Was Irnerius a supporter of the Emperor? After the Dictatus Papae, investiture struggle etc. He probably was since his name appeared in a list, but we do not know for sure! But he had been excommunicated by the Church in 1119. At the end we know something about him but not enough to give a real portrait of him but what we know is enough 22 to understand why he was so important, why he was considered as the founder of the Bologna medieval legal tradition and University. *LIBERAL ARTS: TRIVIUM MADE UP OF GRAMMAR, DIALECTICS (ART OF REASONING), RHETORIC (ART OF EXPOSITION). * LEGAL EXPERT: SOMEONE KNOWING GRAMMAR (ABLE TO WRITE AND TO READ), NEEDING DIALECTICS AND RHETORIC. Adoption of a new methodology: instruments, concepts, categories. The birth of the Universities (the idea of University was born in connection with the legal world): The first one was founded in 1088 in Bologna. In fact, in Bologna in 1087-1088 we encounter the “birth” and the first nucleus of a university. From Irnerius we can see a transmission, generation after generation, of the idea of legal science: Irnerius, as a teacher, had students who became teachers themselves. Those last educated other students and so on. Irnerius’s major four students and then famous «doctores» were: Bulgaro, Martino Gosia, Iacopo and Ugo. Why we call “dottore”, “doctor” someone who achieved the university degree? This word derives from central word dotto, in Latin “DOCERE”, which meant someone having the skills and legitimacy to teach. With that we realize that was born a real class of legal teachers and legal students. Legal schools in Bologna grew and spread very quickly. The phenomena starting in Bologna attracted in the twelfth and thirteenth centuries thousands of law students coming from many parts of Italy and from all over Europe. The Medieval mentality was based on associations: students created corporate bodies, guilds, group of people to face together and better the problems of their lives. Students started to organize themselves with that purpose. The most important kind of association were NATIONES which were based on nationality. An important figure in this period was Frederick I Barbarossa (the Emperor of German origins) who granted in 1155-1158 to the students and professors of Bologna the CONSTITUTION (we have seen that the roman emperor enacted constitutions, that contained privileges for some nobles) AUTHENTICA HABITA. Usually this Constitution HABITA was seen as a sort of general legitimation of the legal schools and legal studies in Bologna as well as of the new-born universitas. The Emperor was searching for a legal help in Bologna; therefore, we find that connection between the Emperor and the roman law studies in Bologna. Three main privileges: 25 by the student in question, with the candidate. (since the student chose the points before the exam, he had a day to prepare them also with his teacher and he had to present them to the commission the day after). However, the student had also to answer to doctores’ difficult questions. If he passed this debate phase (represented by a white ball), he became “LICENTIATUS IN IURE”. The second part consisted of presenting himself in front of the bishop and of the commission in the Cathedral in order to receive the symbols of wisdom, the titles (ring, robe and cap) by repeating in public the private’s debate of the exam. With the purpose of doing it the student had to organize the ceremony himself, paying and managing. Now he became “DOCTOR IURIS” (he can teach everywhere: facultas legendi facultas docendi). The Bologna model, as ALMA MATER, spread everywhere there were the ideal conditions (Modena,Padua, Pisa, Perugia, Oxford (founded by a Bologna student), Cambridge, Salamanca, Montpellier, Orleans, Prague, Vienna, Cracow etc.). That is the birth of the European system of legal education based on Roman legal texts studied everywhere in the same way. Medieval societies needed a class of jurists, of experts in law who studied Roman Law in order to acquire an useful methodology (libri legales), Canon Law and several iura propria (Feudal Law, Customary Law, City Statutes, mercantile law etc.: LEGAL PLURALISM). How did those different legal sources manage to live? Thanks to the jurists, who had a theorical role as well as a practical one. With the birth of the figure of the Jurist the legal science became a “SCIENTIA LUCRATIVA”. Becoming a jurist meant also dealing with a social ascension since society saw the figure of the jurist close to the nobilitas and to the dignitas. MEDIEVAL LAW DIVIDED IN 3 PHASES (BY CRONOLOGY) FIRST: From pretus/irnerus (story telling about this foundation) until 1260 (grossatori- accursio and his Magna Glossa) ACCURSIO: born in Florence about 1182 and died 1263 in bologna. He was a pupil of Azzone and he had a very great success in Bologna (he was a teachers- for jurist teaching was very important). Accursio was important because he wrote a corpus where he wanted to arrange the tens of thousands of comments and remarks (Glossas) upon Code, the Institutiones and the Digest. So he is the most important author of Glossas (Glossa accursiana/ Magna Glossa). It contains about nearly 100,000 glosses(probably more). This compilation soon started to be called Glossa 26 Ordinaria: it became so important that you find it around the roman texes - it was the scheletron of comments around roman texes. SECOND: called “Post-accursiana” (1250-1300) – a sort of transition period. We have some historical elements from the past period, but we also find some new things borning. CYNUS OF PISTOIA :rappresent this period. He was born in Pistoia in 1270 and died in 1336, but studied in Bologna he was a pupil of Dinus De Rossonis. He taught at the universities of Siena, Florence, Perugia and naples. He also was a poet , he was a contemporary of Dante and Petrarch (Dolce Stil Novo mouvment). But before, he was a jurist. He was in contact with some jurists working in Orleans, in France (important place for law studies in this period). In orelans there were some jurists skills to innovate law studies:the most important French jurists were called Jacques De Revigny and Pierre De Belleperche. They started to use in a strong way dialectical method, the quaestio, the ratio legis (ubi eadem ratio, ibi idem ius - when there is the same “reason”,there is the same law). So we can say that they started to overpass the grosseto’s tradition: the grosseto’s jurists were very attached to roman law tradition (very texual), but starting with this generation we can realise the beginning of the change. We know that Cynus probably listened to some lectures of Pierre De Belleperche when he was invited in Italy, and he understood that this Orelans jurist where innovating. THIRD: “The commentators fase” (1300-1500) BARTOLUS OF SASSOFERRATO: born in Venatura in 1313. He studied law at the university of Perugia, he was a pupil of Cynus. He became baccalarius in 1333, a jurist and taught law in the university of Pisa. Bartolus published treatises on a great variety of topics, wrote commentaries and engaged in giving counsel. He wrote treatises mainly on the legal consequences of changes in the course of rivers upon property rights and jurisdiction. Bartolus argued that natural changes in river courses were constant, so properties could be modified according to their course. The territorial jurisdiction of riverine communities could be also increased o reduced. Before Bartolus, territorial jurisdiction was permanent and unalterable. Bartolus invented a new rule: jurisdiction can change. Territorial jurisdiction depended now on how individuals and communities related to space. The growth of cities and states, the constant redefinition of their boundaries led to the acceptation of Bartolus idea of constant change of rights and properties by human activity. 27 CANON LAW Medieval scholars started studying canon law with the same Scholastic methodology used for Roman law. This process started with the reconstruction of the main corpus of canon law. In the 12th century Gratian collected, examined, selected and systematized the different sources of Canon law. He arranged this material logically in 3 parts and enumerated the sources. This compilation, called Concordia Discordantium Canonum, described Church hierarchy, listed the rules regulating it, included instruction regarding judicial procedure, Church property, the religious orders, marriage, sins, repentance and penance. Doctrine and law merged. Other compilations followed, such as the Liber Extra or the Liber Sextus. These compilations received the name Corpus Iuris Canonici. After the reconstruction of the Corpus, the scholars started the analysis and the exegesis. Gratian was the first to do so and he added brief annotations (dicta), that addressed and explained apparent contradictions with the aim of harmonizing the whole. Canon-law jurists ended up glossing, commenting and writing treatises on canon law. They developed vocabularies, extracted principles and systematized the juridical thinking of the Church. Canon and Roman law tended to fuse and it was hard to distinguish between them. FEUDAL LAW Alongside Roman and canon law, scholars also turned their attention to feudal institutions. A feudal law had existed in Europe as early as the 18th century. This law governed relations between lords and their vassals as well as between the various lords. It identified lords and their duties and defined how individuals became vassals and what they owed to their masters. It dealt with the jurisdiction of lords over their vassals, feudal courts and conflicting claims of various lords over the same individuals or lands. It focused access to and use of land as well as inheritance. The Libri Feudorum collected decisions from so-called feudal courts, as well as feudal customs, legislation and juridical writing. The erudite literature on feudalism introduced the study of feudal law to universities. The result was the gradual Romanization of feudal law which was discussed, analyzed and understood by using Roman terminology, categories and way of reasoning. The fusion between the two fields was so complete that they merged. Students appended parts of the Libri Feudorum to their copies of the Corpus Iuris Civilis and glossed them together. Feudal jurists applied the Roman idea of dominum to explain the relations between 30 Law under the Early Normans Also, feudalism penetrated in England. After the Norman invasion (1066), Norman kings established themselves as colonial rulers, taking over the properties of natives. This political, social and economic upheaval was nevertheless accompanied by a legal continuity. Norman monarchs such as William the Conqueror and Edward I employed men of letters as aids and councilors, such as Lanfranc the Archbishop of Canterbury. The teaching of Roman law and canon law was introduced in England thanks to Vacarius. Vacarius was a scholar of Bologna and taught law at Oxford. Vacarius composed a manual (Liber Pauperum) which included extracts from the Digest and the Codex. Copies of the Roman Corpus Iuris Civilis soon became available on the island. Training in canon law was introduced into local universities and cathedral schools, and many Englishmen studied in Continental Europe. Canon law was practiced in the ecclesiastical courts instituted by the Normans in the 1070s. It was only after the 16th century Protestant Reformation that a new doctrine emerged in England requiring canon law, now perceived as foreign law, to be received or approved by kings before it could be applied in the kingdom. The superimposition of Royal Jurisdiction Norman kings depended on the feudal lords who accompanied them to the island and ensured its control, but they wished to limit the powers of these lords, obtaining direct access to their vassals and acquiring full mastery of the land. In order to avoid the mediation of the lords, they started to extend royal jurisdiction throughout the realm. Henry I and then Henry II began instituting a system of royal courts which were to be superimposed on previously existing jurisdictions. By the close of the 13th century, the protection of the monarch included the entire realm and “the king’s peace had fully grown from an occasional privilege into a common right”. The imposition of royal jurisdiction was temporal (protecting dates), geographic (protecting places) and then it covered also matters of importance that were interesting for the king, such ad disputes over the exercise of royal franchise or the protection of particular persons. Royal judges had no supervisory functions: their jurisdiction was entirely separate from that of ecclesiastical, local and feudal courts. Adding royal courts on top of the existing system of adjudication did not create a hierarchical pyramid. It allowed litigants the choice whether to take their conflicts to local, municipal, ecclesiastic, or feudal courts or to request royal involvement. Choice was given only to freemen. 31 Those who were unfree had no right to plead before the king and no ability to solicit his protection. A growing system of writs The growth of royal jurisdiction required the development of new legal mechanisms. Kings could hear plaintiff in person initially but then they had to delegate this faculty and several courts were instituted. Officials and institutions proliferated and additional instruments were created to regulate their activities. Together these developments led to the emergence of a new law. The development was gradual. Early royal intervention was administrative rather than judicial. When the king or his officials received reports of wrongdoing or a breach of the peace, they sent to trustworthy individuals an order to redress the situation. This order was in Latin and written on a small parchment by the royal chancery, bearing the king’s seal and was known as writ. The writ reproduced the version of the offended party and gave instructions as to how to remedy the situation. If the king thought the matter deserved their attention, they could issue a writ that instructed the addressee to make sure that the lord would not proceed to oust the tenant. Writs could instruct lords how to handle the conflict or they could order them to listen to the parties and adjudicate their claims. Writs included an executive peremptory instruction meant to guarantee peace. They were considered an efficient tool allowing the king to intervene in selected cases. They supplied an efficient and immediate solution to problems that needed redress, but soon they were easily abused. Writs began allowing alleged wrongdoers to choose between complying with the order or appearing before a royal delegate in order to explain why he or she should not. This development allowed wrongdoers to defend themselves and was revolutionary. Writs were now orders to initiate litigation. Writs sent the parties to royal officials who heard their cases and decided whether the remedy included in the writ should be granted or not. The need to appear before royal officials gave rise to the pleading. A plaintiff with a writ could present himself before a royal official in order to narrate the facts that justified the concession of a remedy. The defendant would respond by denying some or all the facts, by admitting the facts but giving them another interpretation, by denying the relevance of the writ or by introducing additional factors. They were preestablished answers that could be used also by the plaintiff. This exchange was pretty formal. The argument continued until it became clear what was agreed between the parties and what was contested. It was only after this clarity was achieved that the case went to trial. 32 Contrary to pleading, during the trial the parties had to prove the facts upon which their claims were based. Proof could be established in a variety of ways depending on time, issue and place. The parties could take an oath, be subjected to an ordeal or a jury could be called upon. If the facts of the matter were proven, the adjudicating official determined whether the remedy included in the writ should be granted or not. HOW WRITS FUNCTIONED Writs became instruments allowing litigants to begin a lawsuit before royal officials. They reproduced the decision that the case was within royal jurisdiction and that it justified the king’s intervention. The writ instructed royal officials (justices), to hear the case. If writs were a mean to commence litigation, their denial marked the impossibility of addressing the royal courts. In cases in which the chancery decided that there was no reason or cause for the king to intervene, it refused to issue a writ. The immediate consequence was that royal courts had no jurisdiction over the affair. Litigants who failed to secure a writ were thus barred from pleading before royal courts, but they could still find redress in local, feudal or ecclesiastical courts. Initially writs were issued individually to the person requesting royal assistance and they covered the specific circumstances of his or her case. They were ad hoc and particular, were delivered sealed and theoretically could be used only once. Obtaining a writ required a substantial investment in time, energy and funds. Litigants had to convince the chancery that their case merited royal attention. Writs were mostly granted to individuals whom the kings wanted to protect and they covered issues politically interesting for the king, such as cases in which powers of lords could be diminished. The institutionalization of writs Writs began as ad hoc but soon they were institutionalized. The chancery began keeping a record of wrists used in the past and it expressed willingness to continue doing the same. Writs became a fixed form that litigant could obtain. Writs received names, such as praecipe quod reddat (command that he render) → local authorities could give plaintiffs they claimed at their own. As writs became popular, royal jurisdiction extended and so new writs were produced. In the process, royal intervention, originally viewed as exceptional, became routine and also limitless. 35 THE BACKLASH The proliferation of writs and the growing presence of royal jurisdiction were not always appreciated by the lords that saw their powers diminished. This led to a rebellion that ended with the signing of the Magna Charta. The Magna Charta had to guarantee the privileges of barons and freemen, not the rights of all Englishmen. It was concerned with ensuring feudal control over land and feudal inheritance. In 1258 King Henry III ordered the creation of new writs. Though, the king started to delegate his chancellors to hear litigants and gran them an extraordinary remedy if existing common-law writs supplied none. Litigants who could use writs already recognized by the Chancery took their cases to the ordinary royal courts (common- law courts). If they could not find an appropriate solution in the registry of writs they addressed the Chancery and requested its extraordinary intervention. This new system, called equity, gave remedies only in exceptional cases and it had no preset list of causes of action. The court that adjudicated these extraordinary remedies was identified as the Chancery court. Equity was intentionally fashioned as a flexible system with fluidly defined rules. It depended on the discretionary powers of the Chancellor who had to solve difficult cases when common law supplied no remedies. Equity was not completely arbitrary. Chancellors were university trained and often ecclesiastics. Equity led to the introduction of new instruments. Injuctions → forbade the defendant from taking certain actions otherwise allowed. Sequestration → authorizing the interested party to seize the properties of the opponent who refused to obey a court Prohibition of enforcing unreasonable contracts New areas: trust, mortgages, guardianship, Bankruptcy, commercial partnership and corporations, included doctrines. Equity became more institutionalized and rigid, it evolved into a system of permanent solutions, which were listed and invoked by the parties when needed. Equity and common law began integrating, also because of the changes present in Chancery itself. Rather than adopting ad hoc decisions justified as exceptional, chancellors began applying the same principles of fairness to all similar cases. This tendency for repetition became the rule and the principals of equity were formally systematized and classified. The royal conscience passed from being natural and internal to civil and political. It now aimed at guaranteeing an objective fairness and providing comparable solutions to similar conflicts. ROYAL LEGISLATION 36 Since Henry II kingdom to early modern period, English kings intervened in the legal order by enacting important statues touching upon a diversity of subjects. In 1166 Henry II modified criminal procedure instructing that all criminal accusations were to be made by a jury of twelve men. Edward I statues made trial made by jury compulsory in criminal cases, extended the scope of actions for damages and modified various aspects of land regimes. Henry VIII Statute of Uses and Statute of Wills regulated ownership, taxation and inheritance. The Statute of Frauds conditioned the validity of certain legal transactions in real estate. Parliament had only a counsellor role began acquiring additional powers, for example hearing and presentation of petitions that sought to address questions of legal, economic, political, or administrative nature. These petitions were considered as a legislative act. It included instructions regarding applicability in future. A substantive amount of royal legislation was enacted in this way. The power to enact remained exclusively at the hands of the king. Anyway common law was superior to this kind of royal legislation because royal legislation mainly repeated existing norms (not changed), and statutes were not numerous if compared to the quantity and importance of other legal sources. Even if statutory law was important, it was responsible only for a small fraction of the growth of law and it mainly functioned in particular areas of law such as criminal law or real property, but not others. PART 4. THE EARLY MODERN PERIOD CRISIS AND REAFFIRMATION OF IUS COMMUNE The premise of ius commune was the existence of a single community, Christian and Roman, identified as Latin Christendom, which submissed to a single central authority (the pope), and shared a common legal system which harmonized the differences inside it. These conditions came under pressure in the 15th and 16th centuries. Monarchs began affirming their authority and supremacy inside the territories, instituting kingdoms. This political fragmentation was accompanied by a religious fragmentation due to the Protestant Reformation and the consequent secession of religious denominations from Catholic Church in 16th century. So, common European/Christian law was under attack. Legal Humanists and the Contextualization of Roman Law The first signs of fissure were intellectual and they found expression in a current of thought we now identify as humanism. Humanism was an intellectual, political and artistic movement that began in Italy in the 14th century as a product of the 37 Renaissance. It soon spread throughout Europe. The Renaissance glorified antiquity but it also put man at the centre of its attention. The humanist scholars worked on law, medicine, theology, art, but also on philology and language. Others were interested in history and material culture, developing a taste for antiquarianism. They were convinced that every kind of subject must be studied contextualising it, so knowing perfectly the time and the place that influenced the development of it. In legal studies, humanists criticized ius commune scholars for disregarding context and employing no historical perspective, abusing rather than using Roman law. They employed it to solve present-day conflicts but not understanding it properly. Law for the humanists was in fact always a product of the particular circumstances of the society that created it. It was vital to historicize and contextualise law. Ius commune scholars were mostly interested in harmonizing different pieces of Roman law. Humanists insisted that it was very wrong. The Corpus Iuris Civile they studied was a wide, almost accidental, array of fragments not consistent. Each obeyed the logic of its time, place and authors and the different fragments often contradicted one another. In order to really study Roman law, scholars had to consider the subject as a historical phenomenon that underwent constant changes and mutations. Roman law must be divided into several periods, distinguishing different places in which the various fragments were produced and the identity of their authors. The Emergence of a French Method Law In France humanists adopted a historical and philological approach to Roman law. They reconstructed the texts they wished to study. They published critical editions and tried to eliminate defective copies, reordering them according to genealogy rather than subject matter. They presented their work as an archeology of sorts and rediscovered what Roman law instructed at each given moment. They obscured rather than clarified what this law was. Contextualising Roman texts, inquiring how they had changed over time, humanists discovered an evolving and living normative world. Their work ended up portraying much of medieval jurisprudence as being a gross misinterpretation because those who elaborated it were ignorant of classical culture and adopted the false assumption that law was always homogeneous and wise. The Protestant Reformation 40 were organized regionally involving representatives of the three estates with royal commissioners and lawyers. They agreed on what the local customs were and prepared written texts that enumerated and explained them. The state was now divided in pays de droit ecrit and pays de droit coutumier. It was just a rhetorical division. Customary law was, so, based on a fiction that it had always existed, which wasn’t → Customs were so invented anew. French customary law was greatly influenced by Roman Law: terminology, criteria and doctrines to register customs. After being codified, the customs were commented and interpreted in universities. Political Utility of Customs Hotman hoped that the writing down of customs would limit royal claims for sovereignty by producing norms that the kings could not violate. But the French kings encouraged this process for a precise reason: by reducing customs to written texts, they controlled the local normative order and changed it. They imposed their opinion on what should be added or subtracted and royal officials followed king’s word. Local law started to not depend anymore on community. The intent of replace ius commune with French law was destroyed. 8. CRISIS AND REINVENTION OF COMMON LAW In the 16th century, England experienced a period of economic, religious, political and social change. A confrontation with the Pope led to the creation of the Anglican Church. King Henry VIII had no male descendants and so people began questioning not only who the heir should be but also who should decide on this kind of subjects. The Reformation produced also the creation of multiple religious denominations. Other debates regarded a possible union between England and Scotland. The union was accomplished with James I, which declared all ancient laws ipso facto null and void. He also determined that monarchs were above law, and under only God. In 1611 King James dismissed Parliament. His son Charles dismissed also various prominent judges impeaching others and abolishing certain courts, mainly common-law courts. This entanglement produced a civil war between King Charles I and Parliament. In 1648, after a period of anarchy, Parliament accused the king of breaking his pact with the people, convicting him of high treason and sentencing him to death. The monarch was executed in 1649, the monarchy and the House of lords were abolished and a republic, the Commonwealth of England was instituted under the leadership of Parliament’s military commander Oliver Cromwell. The monarchy was restored in 1660 with the son of Charles. In 1688 the Parliament invited the Dutch 41 Prince of Orange, William, who was married to Mary, the Protestant daughter of the king, to rule over the country. William confronted militarily King James II. James was defeated and left the country. Parliament declared the crown vacant and called upon William and Mary to occupy it. The invitation was based on conditions and terms decided by the Parliament. The Parliament in 1689 elaborated the Bill of Rights which listed, among other things, important checks on what the kings could do. Dissatisfaction with the Legal System The emergence of common law was a direct result of the development of a royal system of adjudication. This system came under pressure in the 14th century, when the Chancery began writing new writs and remedies, but there were also sources of statutory legislation which led to a great complexity of legal sources. Some scholars affirmed that this system was far too rigid. Existing remedies were hard to understand, for the language and for the style of writing. Also, too many piecemeal changes were introduced without legal systematization. This legal system was uncertain, expensive, inefficient and often inaccessible. Common law and equity were the systems followed by royal courts, but parallel to them were hundreds of feudal, ecclesiastic and municipal courts, each obeying radically different rules, procedures and norms. This multinormativity was considered normal because it was flexible and reflected the complexity of society in which kings authority was superior to urban or feudal power. But with the acceleration of economic activity and growing immigration this system was perceived as chaotic. The jurists needed to rationalize the law, systematize accumulated knowledge and clarify hierarchies, between norms and jurisdictions with the aim of guaranteeing greater legal certainty and legibility. Royal justice was now questioned. New developments in society questioned some of the basic assumptions regarding the superiority of royal justice. With the monarchy discredited, legal experts searched to rescue common law from its traditional dependence on the crown so that criticism against the monarch would not harm the reputation of the legal system. They also sought to subject equity to common law. In order to obtain these results, they set out to reinvent what common law was and why and how it was so important. Juridical Response to the Crisis Legal experts adopted three measures to reform and safeguard common law. 42 1. Distancing common law from the king. The system was based on customary law that predated the Norman Conquest. This law was created by the community and it reflected its ancient norms. English legal experts proposed a new, ingenious, and self-interested reading of the English legal tradition. Their aim was to make law independent of the king, place checks on royal activities and position the judges of common law at the center of the political system. Mainly attributed to Edward Coke, this new narrative suggested that common law was not created by the king through writs. At the hearth of this system was, instead, a customary law that predated the Norman invasion and the institutionalization of royal courts and writs. This law was Anglo-Saxon, rather than Roman, and recognized by the Normans, who in a series of successive confirmations promised to adhere to it. This law was created by the community and discovered and then upheld by the judges. Common law was an authentic autochthonous law. English monarchs had to obey to this law because it was customary but also because they had promised they would, and if they had violated it they could be removed or murdered. The final aim of this new reinterpretation was to place common-law judges at the hearth of the juridical system. These judges were no longer royal servants who dispensed justice for the king by following his instructions (writs), but they were charged with identifying preexisting norms (customs) and applying them. Common-law judges were also members of an autonomous body that was perhaps administratively dependent on the king but that legally obeyed only the law. Coke and other legal experts modified not only the character of common law but also their understanding of history. These experts suggested that there was no real conquest because Normans were legitimate heirs to the throne and so they never acted as true conquerors. Normans were willing to submit to the existing normative order, acting as lawful heirs who continued rather than disrupted the normal state of affairs. James I hoped to unify both England and Scotland imposing a new legal regime or substantially modifying the existing one. The response of English legal experts who opposed such measures was that neither Normans did it, they preserved the existing law. Common law was no longer common because it was instituted by the king and applied equally to all his vassals or because it was created by judges and lawyers working in common courts. It was common because it originated in the community. 45 between the king and his barons at the end of a civil uprising. The Magna Charta did not represent the interest of the people, but of the barons. The document referred to some of the most important aspects of feudal relations such as the right to land, inheritance, debt and taxation. The last thing the charter was interested in was guaranteeing the rights of subordinated. It maintained the subjugation of the local population thanks to the collaboration between kings and barons. The Magna Charta was long and casuistic. It included no declaration of principles and no enumeration of norms. When it was promulgated, no one intended it as constitutionally binding. It was simply a political document that barons and Parliament could use to pressure the king. However, the Magna Charta represents what the scholars consider the ancient customary laws of England. For instance, in the chapter 39, the charter declares that no free man shall be captured or imprisoned except by the lawful judgement of his peers or by the laws of the land. We have here the idea of jury and due process. These rights were granted to all the Englishmen, whatever their status. This chapter constituted a justification for the habea corpus writ that protected individuals against arbitrary arrest. Chapter 12 was also important for his reference to the principle of representation: taxation could be levied only by the common counsel of our kingdom. Magna Charta was a perfect document to serve the purposes of 17th century scholars. It mentioned in negotiations between the king and the nobility and it was interpreted by different acts of Parliament and confirmed by successive monarchs. If England had an ancient constitution that was customary, the king was obliged to respect it. These customary laws that framed the relations between kings and their subjects now protected the lives and properties of all Englishmen. Parliament as Guardian of Customary Law England thus had a customary law that predated the Norman Conquest and was subsequently upheld by English monarchs as a part of a pact between them and their subjects. This pact included many arrangements fundamental to the political constitution of the kingdom. But who was to ensure that the pact was respected and followed? The English Parliament appropriated this task. 46 Judges could not guard against infringement of this law, only Parliament could, because it was an assembly that represent the kingdom. At the beginning, Parliament was concerned in responding to petitions, issuing orders and deciding on taxation. Now it becomes a legislative body which has to introduce, articulate and pass laws in collaboration with the king. The gradual affirmation of the Parliament and its assertion of power were evident in the transition from the Petition of Rights (1628) to the Bill of Rights (1689). The Petition of Rights was a request submitted to Charles I in exchange for Parliament’s assent to additional taxation. The Petition was a plea which noted royal agreement, presented as a grace. It cited various authorities to demonstrate that certain rights and liberties that had been enjoyed in the past (taxation and fair trial), were being violated. The Bill of Rights was a solemn proclamation by Parliament presented to William and Mary upon their ascension to the throne. It placed Parliament at centre stage, stating that Parliament was a legitimate assembly legally representing the people. The bill censored the departing king (James II) for behaviour that violated the true, ancient and indubitable laws and liberties of the land, and it agreed to accept the new monarchs on condition that they promise not to do the same. The liberties enumerated included the traditional list (jury, due process, taxation) but also enumerated were many rules that sought to protect Parliament from royal intervention. Because the incoming monarchs agreed, Parliament declared them king and queen of England. Parliament appropriated only the authority to guarantee the rights of Englishmen, but also the capacity to choose monarchs and crown them. If law was customary, legislation could not change the law. Statutory law passed by Parliament could only discover the law. It declared what the law was, it did not make it. This fiction had important legal consequences. All legislative acts must be interpreted as pronouncements meant to clarify law. Judges were central because of the idea of the binding precedent. Previous judicial decisions illustrated the meaning of the law and justified a future ruling was present in England and supported the reporting and studying of case law. This practice was not mandatory and judges could refuse to follow it. The tendency to cite past cases substantially grow. The printing press allowed a greater dissemination of case law, an intensified involvement of judges in decision making and a growing enrolment in the Inns of Court. Coke followed this theory and suggested that to determine what law dictated, one had to observe examples, precedents and judgement rendered in similar cases. Judicial decisions were not anymore ad hoc solutions, but a long chain of rulings that 47 declared and clarified the essence of common law. This transformation authorized our present-day conception of common law as a judge-made law, a system whose principles can be deduced by studying cases. 9. FROM IUS GENTIUM TO NATURAL LAW (week 6) Making European Law Universal I During the early modern period, various European countries engaged in overseas expansion. The first was Portugal which explored the western shores of Africa. The Portuguese had tapped into important trade networks in gold and slaves and instituted a profitable commercial exchange with local merchants. They reached Caribbean, India and Brazil and then large parts of Africa, Asia and America. They radically transformed these territories economically, socially, but also culturally. They imposed Roman law, because it was still considered natural law. The Antecedents: Roman and Medieval Ius Gentium Ancient Roman Law recognized the existence of norms that were common to all polities. These norms, reproduced in ius gentium, were universally applicable because they were based on human reason and experience. What was common to all communities was also in some way innate and natural to humans. Roman jurists considered their own legal system as embodying, pure, atemporal, universal and permanent reason and so they began identifying ius civile with ius gentium and both with natural law. This move justified the imposition of Roman law on all citizens of the Empire. With the Christianization of the Empire, Roman culture melted with Christianity, and so Christianity elaborated a proper own legal system, called Canon Law, which borrowed many elements from Roman Law. European Expansion: Iberian Beginnings The Spaniards which extended their Empires, did not know if they could impose Christianity. They obtained a papal license in 1493. The Inter Caetera stated the Catholic Monarchs of Spain had already engaged in the expansion of Christianity in Iberia, where they fought against the Muslims. They could do the same in America. The bull gave the Spaniards the monopoly to propagate Christianity. The other Europeans could not do it. Their area of action was circumscribed only to the western area from the Azores till Cape Verde Islands. The Spaniards were not satisfied, and so the monarchs negotiated a bilateral treaty with Portugal, their rival. The Treaty of Tordesillas (1494) limited territories under 50 law of nations ruled among sovereign entities rather than individuals. Vitoria is surely a precursor of today’s international law. The path opened by Vitoria was soon trod by other intellectuals. In England, Alberico Gentili referred to the law of nations as natural law in his essays On The Law or War. In the Netherlands, Hugo Grotius did the same to advocate the freedom of the seas and to study the laws of war and peace. The British Crown and British colonialists also espoused this new language to refer to their commitments to natives and in their relations with other European powers. As ius gentium penetrated England, legal experts recognized the law of nations as being part of common law. The breaking down of the Christian unity, the growing number of reformed denominations, and the wars encouraged the quest for a new normativity that could rule over relations among Europeans. By the end of this process, Europeans identified in this new law several unquestionable principles, which came only from reason. These rules were sufficiently self-evident and required no external validation. The Reign of Self-Evident Truth The reign of self-evident truth that required no proof began with Grotius. These truths were elaborated by Grotius with the aid of reason and so these conclusions were so natural that they could be understood by all the inhabitants of the world. These conclusions could be deduced by observing society and nature and employing reason. They would be simple and straightforward. To explain private property, Grotius reasoned that God gave the world to mankind collectively, so that it can survive and reproduce. Men obviously fought and so the territories must be divided. This led to the emergence of private property and to the notion that what one has in his possession should remain his. Grotius defined property as something that people could posses and then he demonstrated that the sea, that could not be taken over and occupied, could never be appropriated. So, Portuguese claims for monopoly over sea routes from Europe to Asia were absurd and so the Dutch could establish their own trade in the region. The Reformation and the proliferation of Protestant denominations forced Europeans to search for a common language no longer based on religious precepts but instead would be organized around shared experiences, a normative system that could be shared with non-Europeans and non-Christians. The scientific revolution led to the elaboration of new epistemologies suggesting that true 51 knowledge could be acquired only by means of observation. Having first collected factual data, humans could then process it and understand what it meant using reason. Descartes in his Meditations on First Philosophy argued that to reach truly logical conclusion, man had to forget all that he knew. Adopting the policy of systematic doubt, Descartes called upon contemporaries to examine even the most basic assumptions including the postulation that they existed. Only by getting rid of the conventions that obscured human’s ability to reason and by setting one’s mind free would humans be able to guarantee that their knowledge and understanding of the world were truly based on facts and reason. On the basis of a very primary and verified truth. Descartes would commence gradually rebuilding all other certainties. If humans domesticated their body and their senses, they would be capable of true reason. This belief was shared by many of his contemporaries who were convinced not only that pure reason existed but that it was shared by all humans. If exercised correctly, it would lead them all to the same conclusion. Scholars and jurists began applying this new epistemology to their analysis of society. Developing philosophies, that now we identify as Enlightened, needed to abandon its veneration of tradition and instead return to simplicity and nature, that is, pure reason. Only after intellectuals understood what nature dictated would it be possible for jurists to translate these findings into a new, perfect normative order that would guarantee happiness. In the late 17th century political philosophers and jurists set out to discover what nature dictated. They hypothesized about how humans behaved before tradition and history obscured their capacity to reason and they attempted to reconstruct human’s primitive state before society Fabricating in their minds abstract individuals who had no past, present or culture, these scholars imagined a man who was unchangeable, timeless and universal. He was reasonable and so his decision to enter into social relations must be explained by the advancement of his goals and the satisfaction of his basic needs. The state of nature was so analysed by many scholars, but with different terms and conclusions. Thomas Hobbes argued that the presocial state featured a permanent situation of anarchy and war. When he entered society, man consented to surrender many of his natural liberties in exchange for society. The man entered the society out of fear. The social contract included to obey the state. 52 Thomas Hobbes is an English philosopher, considered one of the founders of modern political philosophy. In addition to political philosophy, Hobbes also contributed to a diverse array of other fields, including history, jurisprudence, geometry, the physics of gases, theology, ethics, and general philosophy. He was the tutor (private teacher) of various English aristocrats, and he travelled with them in Europe. He lived in Paris from 1640 to 1651. He started to write as a political thinker. In 1751 he wrote in his most famous work, Leviathan where Hobbes reflects on the foundations of political sovereignty. Like Bodin, Hobbes lives through a civil war, when there was a risk of the dissolution of the society. For Hobbes, as well as Bodin, a medieval, «mixed constitution» is the cause of the crisis. The crisis had arisen through a struggle between three factions (King, Commons, Lords). For Hobbes a unique subject, irrevocably the holder of sovereign powers, is the way to get out of the crisis. Leviathan was written during the English Civil War; much of the book is occupied with demonstrating the necessity of a strong central authority to avoid the evil of discord and civil war. It is clear this link: how getting out the civil war. Beginning from a mechanistic understanding of human beings and their passions (Hobbes is a political thinker but also a scientific men), Hobbes postulates what life would be like without government, a condition which he calls the state of nature. In that state, each person would have a right, or license, to everything in the world. For some aspect each person has the wider possibility to be free and owner of all, but because of this, all the people has the same rights and this licence to take for him all they want. This, Hobbes argues, would lead to a "war of all against all" (bellum omnium contra omnes; homo homini lupus). The state of nature is synonym of permanent war “In such condition, there is no place for industry; because the fruit thereof is uncertain: and consequently no culture of the earth; no navigation, nor use of the commodities that may be imported by sea; no commodious building; no instruments of moving, and removing, such things as require much force; no knowledge of the face of the earth; no account of time; no arts; no letters; no society; and which is 55 president. The Constitution also instituted a Supreme Court with renumerated judges. The first ten amendments to the federal Constitution listed the protected rights that the government could not violate. These included: • Freedom of religion, speech, assembly and petition • The right to form militias and bear and keep arms • The requirement that the government secure consent for the lodging of soldiers • Security against unreasonable searches and seizures • Several protections in the field of criminal law • Right to trial by jury in criminal and civil cases • 9th Amendment → The rights included in the bill were not exclusive and other rights could be retained by the people even though were not enumerated • Powers not specifically delegated to the United States or explicitly prohibited to the individual states were reserved for the states or the people. The Creation of New Polities Many of the principles included in the Declaration of Independence, in the Federal Constitution and the various bill of rights were completely new. Such as the separation of power proposed by Montesquieu, or the division of labor between federal and state governments and made the citizens of each state entitled to treatment as citizens in all other states. The Thirteen Colonies adopted a radically different constitutional arrangement. Although sharing the belief in an ancient political pact that guaranteed their rights, they searched for a distinct solution. Mixing customary arrangements with innovations that were justified by reason, they proceeded to adopt a series of elements that would constitute a new pact between them and their government. They asserted their absolute power to do and undo society and its laws. These colonists turned the English tradition upside down. They made several important structural innovations. They began by affirming in the Declaration of Independence their right to constitute a new polity that would be based on a new social pact. They then defined the new pact with the Constitution. It no longer represented a customary agreement that had evolved historically. Instead, it included a program for government that was designed and planned according to what contemporaries trusted would be most efficient. Including general principles rather than a casuistic list of elements, this new pact was mean to be 56 comprehensive and enumerated all the most legal arrangements. It represented a profound belief in human reason and a faith in human capacity to rethink the social order in ways that would improve the humankind. There was no need for old documents, laws, doctrines or judicial opinion that would prove their preexistence or assent to their worth. The measures taken up were supported only by self-evident truths. The drafters appealed to the “Supreme Judge of the world” and affirmed the “rectitude of their intentions” to support their claims that their vision was correct. There was no room for questioning. The Laws of Nature entitled them to create their own polity and adopt for its management the rules that best fit their interests. They identified their traditional and customary rights also as natural rights and acting in the name of the people they sought to “form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare and secure the blessings of liberty” for themselves and their posterity. The adoption of writing was revolutionary. Representatives of the new states prepared foundational documents that drew up the rules for the new polities and listed their authority and powers as well as the rights that should guide or limit their activities. It was like all the natural law was finally been written. The rights Americans proclaimed were also new. They were no longer privileges or liberties granted by a monarch. They were something that each person owned by birthright and because nature so dictated. For instance, the Declaration of Rights of Virginia and Pennsylvania stated • Men have certain inherent natural rights of which they cannot be deprived, such as life, liberty, property, happiness and safety; • All power is vested in the people • government is or ought to be instituted for the common benefit, protection and security of the people, nation or community. • Government must adhere to justice, moderation, temperance, frugality and virtue. • Freedom of worship and expression and upheld the right to fair trial. Another important question was the legal binding of the Bill of Rights. Legal experts appealed to the Ninth Amendment as guarantee of this enumeration of rights. But it wasn’t respected until the end of Second World War. 57 US courts have almost universally avoided making use of Ninth Amendment. They tend to justify the recognition of new rights by reading them into existing clauses, such as the right to privacy. The most important innovation introduced by the representative of the colonies was the determination that the new constitutional arrangements belonged to a higher normative order above and beyond ordinary laws. They also limited the power of lawmaking. The Constitution was now a part of a new, superior sphere of legality, no law or governmental action could contravene it. The Constitution was the highest form of law, higher than all other normative sources, and it would also seek to limit the discretion of Congress. The Congress and the executive were not sovereign because they were limited by what the Constitution dictated. The aim was not only to protect the people against government but also to protect them against the decisions of majorities exercising their power to legislate. English Antecedents In 1628 Coke asserted that common law meddled with nothing that was done beyond the sea. The ancient and customary constitution could be operated only in England. William Blackstone agreed that common law had no authority in the colonies. But with the new reinterpretation of common law, seen as a set of principles so a substantive law repository of rights, disconnected from the king, it could be applied by local colonial courts. The colonies gradually approached to common law. This happened because of the growing presence of the state and the greater role of colonial merchants and merchandise in the imperial markets. The colonies were a loose association of autonomous bodies, each having a somewhat distinct legal regime. Colonial legal arrangements were not repugnant to English law. Some debates analysed which laws had to be applied in the colonies. A big problem wasn’t only the imposition of common law, but the imposition of all the other laws present and cohabiting in England, such as feudal, ecclesiastical and local laws. However, the common law came to prominence, because of its flexibility and so perfect for the exigency by the colonies of new rights. Enlightenment Roots The Enlightenment was an intellectual movement that took hold in various parts of Europe in the 18th century. In its core was a firm belief in rationality and in human capacity to reform the legal order. Enlightened thinkers concurred that society came into being after individuals living in a state of nature negotiated a social pact. These 60 On July 14 1789, an angry mob stormed the Bastille, a fortress on the eastern side of Paris, in an episode that marked the beginning of the French Revolution. The king was forced to relinquish much of his control, peasants began attacking seigneurial properties, new constitutional arrangements were developed and King Louis XVI was sentenced and executed. The Revolution grew more radical and more violent over time and those who resisted it were persecuted. Symbolized by the invention of the guillotine, persecution led to the execution of many and this period was called the Terror. After several constitutions and a period of violence and chaos, in 1799 Napoleon Bonaparte ascended to power. The French Revolution led to the exigency of a complete overhaul of the legal and political system. This would include constitutional changes and a modification of the entire legal system. The aim was to create a new order, where norms would be no longer be inherited from the past. All decisions regarding both public and private law would be mandated by natural law and reason, and guided by the will of the nation. The Making of a Revolution These radical political and legal transformations began in 1789, when members of the Estates General (the Parliament) declared their meeting a National Assembly. This declaration implied that instead of a body divided by estates (nobility, clergy and commoners) and representing specific regional interests, the assembly would now have only one chamber, which would represent all estates and regions. It would speak on behalf of the nation, conceived as a society of citizens. They had powers to modify existing political and legal structures. They proceeded to abolish the feudal system and many of the privileges of the Church. They eliminated the sale of judicial and municipal offices. They ended fiscal privileges. In the August Decrees the Assembly declared that all provincial, district, local and urban legal particularities would cease to exist and a single law would instead apply all over France. The Assembly then adopted the Declaration of the Rights of Man and the Citizen (1789). This declaration proclaimed the existence of inalienable right and important constitutional elements • including equality, liberty, property, • security against oppression, presumption of innocence, • no taxation without parliamentary consent • freedom of speech and the press. 61 • Sovereignty resided in the nation • Legislation expressed the general will • Armed forces had to protect the common good rather than the king • What was not prohibited by legislation was allowed • No one could be constrained from doing anything unless legislations so mandated These were natural, inalienable, sacred, simple and incontestable principles set under the auspices of the Supreme Being. The authors of the Declaration appealed to self-evident truths, suggesting that the changes they introduced were in reality a restoration. It was precisely the ignorance, neglect or contempt for these self- evident truths that led to the public calamities and corruption the members of the Assembly sought to correct. In 1790 the National Assembly abolished all ecclesiastical taxes, confiscated Church property and forced the clergy to become state employees. Different revolutionary groups and individuals identified the structures that would best fit their image of an ideal society. In 1791 the National Assembly voted on the first new constitution, which included many of the initial foundational changes. The aim of the document was to abolish irrevocably institutions that undermined the liberty and equality of man. There would have been no more distinctions based on birth and no privileges other than the ones bestowed on all Frenchmen. Labor would be liberated too: all employment would be made available without distinction other than virtue and talent. The aim was to guarantee the natural and civic rights of all Frenchmen, including • the right to hold jobs • a fair distribution of taxation according to financial ability • equal punishment for equal crimes • freedom of movement and protection from arrest • freedom of speech and press • freedom of assembly • freedom to address the authorities • the inviolability of property → no one could limit this right unless public security or the rights of third parties were in jeopardy • France was a single indivisible polity • Sovereignty was inalienable and resided in the nation The Constitution instituted an executive (king) a legislative branch (deputies elected by the people) and a judiciary (elected). French citizens were divided into active 62 citizens who could vote because they were males all over 25 years old and paid a certain amount of taxes and passive citizens who could not vote. In 1792 France was reconstituted as a republic, whose assembly was to be elected by universal male suffrage. In 1793 Louis XVI was executed and a new constitution was adopted. The National Assembly would be elected by all male citizens and was to suggest laws that regional “primary assemblies” would have to ratify. The National Assembly would appoint the executive from lists of candidates proposed by these primary assemblies. Debates in the National Assembly would be open to the public and would be decided by the majority of members present. This constitution ended enumerating the main rights of Frenchmen including equality, liberty, security, property, free exercise of religion, the right to education and public assistance, freedom of the press, and the right to hold popular assemblies as well as enjoy all the other rights of man. The constitution also guaranteed respect for loyalty, courage, age, filial love, misfortune and all other virtues. The 1793 Constitution was ratified by popular referendum. Its implementation was delayed and then set aside indefinitely until peace would be achieved. In 1795 another constitution was adopted. It granted greater power to a five-person executive called the Directorate. It augmented the protection of private property and the inviolability of private residences, which could not be entered or searched without an appropriate warrant. It forbade the formation of corporations and associations that were contrary to public order and the creation of societies concerned with political questions. Political rights should be exercised only in primary and communal assemblies subject to the law. Any other unauthorized gathering would be considered an attack on the constitution and would immediately be dispersed. The Constitution proposed that the French Era date from the September 22, 1792, the day of the establishment of the Republic. The 1795 Constitution was therefore enacted in year III. A New Vision of the Law These new legal arrangements were often the result of the compromise. The results obtained were often less coherent than what was intended, many of the changes proposed in France in the 1790 were truly radical. Beyond the particularities of laws and constitutions, these developments all contributed to the reformulation of what law was, where it came from and what it was based upon. 65 This unification was already proposed by Jean Bodin. He affirmed that society needed to have a government that would display supreme command over all citizens. Rather than public power being divided among many individuals, there would be one person (king), who would accumulate all powers and would be placed in a position of clear superiority to all other jurisdictions. He would be able to declare war and peace, hear appeal in the last instance, nominate and remove officers, impose and collect taxes and he would have the absolute power to make and change the law without needing to obtain the consent of others. Sovereignty was a necessary condition for the survival of all polities. Bodin (1530-1596) was, like Hotman, a French jurist (humanist), historian and political philosopher who lived during the religious conflict and the civil wars between Catholics and Protestants. He was a moderate supporter of Henry III. The discussion regarding the best form of government which took place around the time of the St. Bartholomew's Day massacre (1572) inspired Bodin to write The Six Books of the Republic. Machiavelli would have granted the sovereign the right to act for the benefit of his state without moral consideration, and Protestant theorists advocated a popular government, or at least an elective monarchy (idea that monarchy had to be limited). A group of radical ugonots (Monarchomachs) had the idea that the monarch was becoming a tyrannis and so they have to be legitimate in order to resist. Bartolous introduced this problem. Are people legitimate to resist? They developed the medieval argument on this topic. The language he used was republican, This orientation was dangerous in a monarchy. He was important also for the vocabulary. He also introduced the problem of the link between morality and politics Bodine’s classical definition of sovereignty is: “la puissance absolue et perpetuelle d’une republique” (the absolute and perpetual power of republic). Sovereignty was not only linked to the monarch, but conceptual elaboration his wider, because the sovereign can be an assemble or other form of government. He supported the monarch. His many idea about sovereignty is expressed in chapter VIII and X of Book I. Bodin is against all types of mixed constitution and resistance theory (a theory to which the Huguenots subscribed, they were against the emerging sovereignty) and his work was seen as an effective counter-attack against the Monarchomach position invoking “popular sovereignty” (the medieval constitution of the monarchy 66 as a “mixed constitution” formed by the King and the Estates (aristocracy, clergy, third estate. For Bodin sovereign has to be • Perpetual: not revocable (no power can revoke it) • Original: it does not derive from the people • Absolute (legibus soluttus): literally it means “free by the laws”. But the sovereign is not a tyrant. To some extent the sovereign is limited by institutions like the court (parliaments) and the fundamental laws of the realm“leges fundamentales”, first of all the Lex Salica, determining the succession to the throne: customary law (the succession could not change) • Above all, the monarch is “responsible to God”. • But he is free to make and change his laws. The legislative power it is the nucleus of the power, an exclusive of the sovereign, together with the power to make justice and war. The law is order of the sovereign. The sovereign is who makes and repeal the laws. Through the legislative power the sovereign rules over the society. This reflection is a starting point, because this theory is linked to a specific vision of the law, which is not customary • Indivisible: The sovereign has exclusive rights over the power to give and repeal the law the power to declare war and make peace the power to make justice and appoint magistrates After the French Revolution, the French lawmakers would have created a sovereignty invisible. Gradually eliminating the powers possessed by officeholders who purchased their offices, by Lords, by the Church, it collected these pieces of jurisdiction together to create a new type of public authority that would be charged with all public power and would be placed hierarchically at the top. The constitution of 1791 asserted that sovereignty is one, indivisible, unalienable and imprescriptible. The Enlightenment We could say that the revolutions that took place in America and France drew their philosophical and ideological inspiration from the Enlightenment. The intellectual movement known as the Enlightenment affirmed that human society could improve if its organization and laws were more attuned to nature. Methods of inquiry applied to the hard sciences could also serve to explain society. Like nature, society was subject to regular and uniform laws, which men could understand by employing reason. Discovering these laws was essential because this 67 knowledge allowed men to plan their activities and their societies by forming appropriate institutions and devising rules to lead them to greater happiness. If men created the foundational pact, they also could change it by reaching a new agreement if circumstances so required. The original pact no longer simply restrained what people and governments could or could not do. It could also become an instrument of change. People living together in a polity were seen as having the power to make and unmake their association, as well as modify the terms of their agreements. To imagine a better future, it was necessary to destroy the past. Rousseau concluded that society corrupted rather than improved man. The new social contract he proposed would subject man only to the community of which he was a member. All men would be both equal and sovereign, it would guarantee true happiness. Local Conditions I: Legislation During the 15th,16th and 17th centuries, French monarchs gradually assumed the power to legislate. They organised campaigns to write down the customary and oral laws, in order to write down and collect only the laws allowed by them. The French legal system was profoundly changed by the kings, which reorganised structures and institutions according to their personal will and aspirations. Louis XIV was famous for his reforms. During his reign, committees of jurists drew up general ordinances that refashioned civil and criminal procedure and regulated many other aspects of commercial life and navigation. Louis XIV also introduced the study of French law into local universities and encouraged jurists to write textbooks. Royal legislative interventions continued over the centuries and in the 18th century also areas of private law such as donations and inheritance were modified. These interventions were necessary because French law was far too chaotic, difficult and impractical. It required systematization and scrutiny, in order to understand which law maintain and which had to be modified. Some philosophers approached to the cause. Bodin suggested that the public power had to be concentrated in one person who should exercise his faculties by making laws. Law continued to be justified by a theologically based truth (veritas), but it was in the hands of monarchs and depended on their truth (voluntas). Another concept, the reason of state, demanded that rulers actively intervene to ensure the well-being of their kingdoms even at the expense of taking measures 70 Continent. What was now proposed was a new commonality anchored in reason and natural law. Human reason was one and the same everywhere. This implied that, although it was nationally created and nationally bound, the French law could be valid for other countries. The French declaration pretended to announce principles that were general and timeless, ahistorical and unchangeable. The language used was extremely abstract. It decontextualised rights and disconnected them from the particularities of place, time, or legal tradition. • 1 ART: Man is born free and should remain free • 2 ART: The aim of every political association is the maintenance of the natural rights of man, mainly liberty, property, security and resistance to oppression. • 4 ART: Liberty consists of being able to do anything that does not harm others These norms could be common to all men and societies whatever their particular nature might be, but it was also a useful tool. The more abstract a description, the more potentially inclusive and the more open to a variety of interpretations it was. This abstract language facilitated the adaptation of this declaration to the requirements of a constantly changing society, in which it was easier to achieve agreement on principles. The Status of Natural Law The Declaration of The Rights of Man and Citizen included a recognition of preexisting norms and also the intent to give these norms a new character by recreating them legally through their formal adoption by the National Assembly. The Declaration affirmed the superiority of the “natural, inalienable and sacred rights of man” and enumerated them. The French gave these rights normative value in a system that recognized no other legal source but legislation. But how to safeguard natural rights? The Declaration might have transformed these rights into valid norms, but it was not powerful enough to restrict or limit the sovereignty of the National Assembly, which could still legislate in ways that could contravene these rights. So legislative and constitutional texts appealed above all to legislators’ conscience. The 1791 constitution entrusted guardianship of rights to the fidelity of the legislative body, the king and the judges and to the vigilance of fathers, wives and mothers, young citizens and all Frenchmen. The constitution mandated that lists of rights would be reproduced on large tablets placed in the halls of the legislative body and in public places. In 1795, 71 guardianship of the constitution and rights was again entrusted to the fidelity of the legislature, the executive, administrators, judges, fathers, wives, mothers, young citizens and all Frenchmen. Conclusions In England, the Thirteen Colonies and France resistance to monarchy led to the invocation of an ancient constitution that the monarch betrayed and so the subsequent affirmation of parliamentary powers. Contemporaries claimed to be acting as guardians of both law and rights. Rights became rational entitlements pertained to all humans according to the law of nature. Law passed from being inherited and customary to proposing new rational solutions which guarantee happiness. The revolutions followed different paths. The Thirteen Colonies upheld to their traditions and to natural law, which was for them the same thing. French actors stated that they favored a radical break, following continuity but also change. A complete overhaul of the system was never achieved in France, but something changed. The legal system based on ius commune, customs and royal legislation came to rely mostly on legislation by the National Assembly. The normative system was redesigned to introduce change. The representative assembly which had legislative power was based on the will of people and guided by reason. PART 6: THE NINETEENTH CENTURY 12. CODIFYING THE LAWS OF EUROPE Making European Law Universal II In the 19th century most European countries experienced codification fever. Following the French Revolution, the central role assigned to legislation enabled jurists and politicians across Europe to substantially modify the normative order by enacting codes designed to replace most or all other legal arrangements. Two basic models for codification emerged, the first originating in France and the other in Germany. The French code appealed to reason and searched for simplicity. The German code invoked tradition and was highly technical. The codes were also very similar and were imitated around the globe driving yet another universalization of European law. 19th Century France: From Revolution Within to War Abroad 72 The French Revolution introduced a new understanding of what law was and where it came from. Legislation was the only legitimate normative source and it was to originate in the decisions of a sovereign National Assembly. Its aim was to create a new, improved society by inventing new, improved laws based on reason and will. The law had to be one and common. In the period of the Italian Campaign during the French Revolutionary Wars, the general Napoleon Bonaparte emerged as a leader, becoming consul in 1799, consul for life in 1802 and emperor in 1804. Napoleon restored order inside France and won over France’s enemies, spreading the tenets of the French Revolution beyond French borders. Until his unsuccessful invasion of Russia (1812) Napoleon seemed invincible but not until 1815 when he was finally defeated. Initial French success resulted in important legal changes involving the preparation and subsequent diffusion in Europe of legal codes that had to embody the spirit of the French Revolution. These codes were first applied in France but then also in territories under French occupation of influence. Napoleonic Codification From 1790, French jurists suggested that because revolutionary law was based on reason, it could be easily systematized creating a single yet holistic legal text that applied all over France. It would guarantee the reign of liberty, equality and fraternity. The ideal text would be clear, concise and accessible, its comprehension requiring no expert knowledge or preparation. The book would be kept in every household to be used by rational individuals to plan their activities. The text would also educate citizens as to their rights and duties. The code had to be different from the other codes elaborated in Europe, such as the Feudal Code of Venice (1780) or the Leopoldine Code of Tuscany (1786), but also the various codes elaborated in Austria and the General Code for the Prussian States promulgated in 1794. Previous codes aimed to compile, simplify and systematize existing codes, this new code wanted to innovate. It introduced a new, complete, definitive legal order that would replace all that existed before and that would be based on general will and reason. With the ascension to power of Napoleon, a new commission proposed a text that a legislative body controlled by Napoleon promulgated in 1804 as Le code civile des francais, better known as the Code Napoleon. The text covered private law and included 2.281 articles dealing with the law of persons and property. The Code introduced equality before the law, protection of private property, secularization of marriage, legalization of divorce and freedom of religion. But it was also a mixture of 75 They were interested in rescuing a genuinely German past and they set off to the countryside to record popular traditions. Von Savigny was instead a Romanist and he understood the interaction between German and Roman law. Romanists studied law in order to understand the concepts and principles and the organisation of them. Roman law could still be used to systematize and organize German law without being unfaithful to it. Roman law was not a foreign legal system. It was a repository of methods and instrument that would enable them to describe the existing law with precision and consistency. Through the analysis of different sources, Romanists came up with the concept of rule of possession, which stated that possession depended on one’s having control over thing as well as having the intention to hold it as an owner in good faith. But Romanists became obsessed with categories, concepts and abstract. Romanists ended up proposing a law that, rather than being based on the particular traditions of Germany, was an abstract logical construction divorced from any social, religious, political, cultural or economic considerations. It was a system of legal mathematical calculation. Romanists were also accused of anachronism. Between 1874 and 1877 a committee of academics, practitioners and government officials deliberated on how to prepare a national code for the new, unified German state. They used existing compilations, Roman and customary law and unified the various legal systems of the diverse territories. Each member of the committee had to write one part of the code. After seven years, they met to discuss the results and after six years of debates the committee published a proposal, sending copies to universities, judges and scholars. Also newspapers collaborated printing parts of the proposal, which provoked heated contestation. For some the draft was excessively Roman or too complex and abstract in the language. It had to be translated into ordinary German. Between 1890 and 1895 a second committee revised the first draft. The draft (BGB) became soon statutory. The new code included five parts: 1. Introduction → law of persons, classification of things and juridical acts, prescriptions The other parts regarded property, obligations, family law and succession. The BGB had 2385 sections. It introduced many innovations, mainly in contract law, but it did not cover all areas of private law. BGB depended heavily on Roman law, for example 76 in obligations part. Other fields, such as family law, were anchored in Germanic traditions. The language remained technical, conceptual and opaque. French and German Codification Compared The French and the German codes were almost complete opposites. They sought to systematize the law and write it down so to guarantee legal certainty DIFFERENCES: 1. The French Code sought to break with the past and be based on natural universal reason understandable by all people, so it had to be simple and easy to use. The German Code was the product of past traditions, compiled by jurists who used sophisticated juridical science, so hardly understandable by everyone. 2. The French Code was meant to democratize the law and allow citizens to know what their rights and obligations were. The German Code was a monument to the constant necessity for the mediation of legal experts. It ensured a central role to jurists and universities. 3. The French Code eliminated all other normative sources and was meant to usher in a new, revolutionary age The BGB was not designed to replace the previous law, it codified it. 4. The French Code created an unique, single, common legal order for France. The BGB left ample room for local arrangements, recognizing the need to conserve them in regulations regarding mines, waters, fish and game, property relations between individual and state, public property, religious societies and insurance. SIMILARITIES: 1. They both sought to restate the law systematically and concisely by using general, abstract language. 2. They both relived heavily on ius commune. 3. They both obeyed the mandate of a modern society for a separation of powers, protecting also private property, liberty of contracts and legal equality. 4. The promulgation ushered in a period of additional codification → Fiscal code, commercial code, criminal code, code of criminal and civil procedure 5. They were both understood as universal, rather than national code. Codifying Common Law 77 Maurice Amos suggested that codification was one of the great activities and vehicles of civilization. Amos was one of many admirers of codification in England. He spent time and ink explaining to his compatriots why codification was good and what it could do for them. However English and American legal professionals turned their back on codification. English Response to Codification At the turn of the 19th century, English law was divided into two main parts: statutory law, which included legislation passed by Parliament and conserved in the archives, and common law which encompassed customary law made by judges, which was then located in the Yearbooks and then in the Law Reports. Law Reports became institutionalized and were authored by private individuals, like Edward Coke. The Yearbooks and then The Law Reports were the best source for studying the development of common law concepts, methods and doctrines. These sources had different quality and no general index that would help one navigate through them. Lawyers used so secondary literature, such as abridgments, to discover which past cases and rulings might be applicable to their case and what they stated. In order to know what the law dictated, it was necessary to consult both the legislation and case law, which was an extremely arduous task. Legal practice, including maxims, principles, presumptions and doctrines expressed by judges or lawyers, also introduced into this mix additional elements that were considered mandatory. Francis Bacon and Matthew Hale envisioned a compilation of the laws of England that would include three books: 1. Book → legal institutions, legal maxims and a legal dictionary 2. Book → reediting the Yearbooks 3. Book → reproduces statutory law. In 1833 a committee reconsidered criminal law and was appointed by Parliament. The committee prepared a code including all statutes, enactments and common-law principles regarding crimes and their punishments, but it failed. In 1866 a committee wrote a series of drafts that became textbooks on the different branches of English law. They adopted other means to simplify their system. For example the Parliament passed the consolidation acts that collected various pieces of statutory law. They covered a particular legal field which reproduced and described this field exhaustively in a single text that would be then promulgated. Some parliamentary legislation combined statutory and case law and it was called codifying statutes. The Bills of Exchange Act in 1882 consolidated 17 statutes in a single text but also 80 the codifying committee. Field planned five codes for NY: a political code (governmental rules), civil and criminal procedure codes, penal and civil codes. Field wanted to create brief and synthetic codes without archaic regulation. He sought to identify general principles from which all other legal solutions could be decided. The codes Field prepared were revolutionary, although the civil code met strong resistance. It was too close to the Napoleonic Code. The NY code of civil procedure, passed in 1848, was adopted in Missouri in 1849 and then in 21 additional states and territories. The draft of the civil code that the NY legislature rejected was instead adopted in the Dakotas which also adopted the NY penal code. California followed adopting in 1872 all five NY codes and so did Idaho, Montana and Colorado. This can be explained by the lack of dense legal traditions in those parts of the country. As in colonial India, codification allowed for the adoption of a superior normative system when none existed or where those that existed were severely flawed. With a civilizing mission, the NY codes domesticated the new North American territories using the purportedly mature deliberations of NY lawyers and legislators. If codification was an option in NY, in the American West it was a necessity, because some of these States had a chaotic legal situation. California was a Spanish and Mexican territory. Dakotas, Montana and Idaho and other west states were French possessions. Moreover, large parts of these territories were under the control of the indigenous tribes. In 1770s the Continental Congress met in Philadelphia and declared that the new territories northwest of the Ohio River would be subject to common law, because all other legal systems were arbitrary and were no systems at all. Attempts to introduce legal change met resistance: residents believed their system to be orderly and just. In California, many demanded the continuation of the Spanish legal system. Other proposed a mixed normative order: English law of evidence, English commercial law, English penal law and then Spanish-French procedural codes. In Texas local courts continued to use the Spanish Civil procedure which was considered to better fit for local conditions. Some scholars sustain that the Anglos preferred to establish common law because it allowed them to dispossess natives, whether indigenous, Spanish or French. For this reason, NY codes were mostly welcomed in territories that were now transitioning to common law. The codes were an instrument for imposing a new law and rather than being contradictory to common law in spirit and design, they were a strategic and useful device by which to impose it. 81 No codes but Legislation American Law was more accepting of legislation than the English common law. The colonial legal order was based on written instructions by metropolitan and colonial authorities. Local assemblies in Virginia, Massachusetts and Georgia considered themselves authorized to legislate, compile and reform law. The independence detached their legal system from England’s and so they came under the influence of democratic impulses that trusted local assemblies more than judges. Americans appealed to legislation in order to create their states and federation, which came into being after they adopted constitutions in which legislature were instituted. In this new legal system there was a preference for official, written rules, explicitly promulgated by appropriate institutions over unwritten customary laws. Most states of the US turned to legislation to clarify and solidify their existing systems as well as introduce innovation. Many legal professionals took a lead in these developments, preparing drafts that they encouraged the legislatures to enact formally. Motivated by growing interstate immigration, commerce and collaboration, in 1892 a group of lawyers, judges and law professors founded the National Conference of Commissioners on Uniform State Law. Supported by the American Bar Association, members of the Conference elaborated a series of individual acts: the Negotiable Instruments Law (1882) and the Uniform Sales Act and the Law of Warehouse Receipts (1906). In 1923 the American Law Institute was founded with the explicit aim of undertaking the simplification of the US legal system. In 1994 the members of the Institute in collaboration with the National Conference of Commissioners of Uniform State Laws agreed to work toward the elaboration of a Uniform Commercial Code. It was published in 1951 and revised in 1962. The Code covered issues such as sales, leases, negotiable instruments, letters of credit and investment securities. It was adopted by all 50 states. The Uniform Commercial Code produced a certain unification across the US but it was different from Continental Codes because it allowed some variations among States, which were allowed to choose between several options and it was not intended to replace all previous normative sources. The Uniform Code indicated issues that needed considerations, suggested questions that judges should ask and included a catalogue of possible remedies, listing also the possible conditions for receiving them. This Code allowed wide judicial discretion. It refused to prescribe how each case should be resolved. It indicated what the judge ought to take into 82 consideration and which methods he or she should follow in order to reach a just decision. The code supplied a roadmap rather than a destination. EPILOGUE: A Market, A Community, A Union In 1951, France, West Germany, Italy, Netherlands, Belgium and Luxemburg formed the European Coal and Steel Community. The aim was to place management of these important natural resources under common control so as to encourage economic growth and interstate collaboration. With the Treaty of Rome (1957), the six countries established the European Atomic Energy Community and the European Economic Community. The EEC set some basic rules that were to facilitate trade relations, such as abolishing tariffs between the states and setting common trade and agricultural policies. These developments were focused on economic growth and greater political union. This was the European response to the horrors of the 2WW and the intensification of the Cold War. The institutional structures were intensified in 1967 forming a single institutional configuration, the European Community. It had an executive, a legislature and a judiciary branch that included a commission located in Brussels (executive), a parliament located in Strasbourg and collaborated with a legislative council (ministers of member state) and a court of justice located in Luxembourg. The community also had an assembly (European Council) that included all heads of member states, who met regularly to discuss European policies. Over the years 1973 to 1986 the European Community expanded: UK, Ireland, Denmark, Greece, Spain and Portugal joined. States saw the advantages of forming a free trade area and a customs union and had more federalist aspirations. In the 1980s the Community moved from its initial design as an international organization that promoted interstate collaboration to a new structure that constitutes a state or a quasi-state. In 1986, in fact, the member states of the European Community signed another treaty (the Single European Act) that adopted additional steps toward the creation of a true single economic market. It was added the qualify majority voting in a number of areas, which eliminated the veto power of national governments. Another introduction was a timetable for their economic merger and defined some of the ways in which this merger would take place. The treaty set also a calendar to extend collaboration among member states to fields such as the environment, social policies, education, health, consumer protection and foreign affairs. The European Parliament, now directly elected by citizens, was given a larger role. In 1985 five of the 10 member states signed the Schengen Agreement. The agreement advanced the agenda of those who wished for a closer union. It 85 The court integrates into European law the instructions of the European Union Charter of Fundamental Rights, the European Convention of Human Rights, and new European and international standards and traditions. The new European Law: An Idiosyncratic System The European order is an odd creature that does not subscribe clearly to a single genealogy or trajectory. The new European legal system was an efficient mechanism that forced compliance on national governments by recruiting the help of their citizens. The transformation of European law into a superior, constitutional-like law was not foretold but some scholars insist that seeds of these developments were already planted in the founding treaties. National governments acquiesced to the growing powers of Europe, because they were favourable but also they were too costly politically. What made European law authoritative was not a declaration of principles or the signing of yet another treaty but a practical mechanism, proposed by the European court, that pushed European law into primacy by allowing different actors to call upon it to protect their own interests and desires. The European law resulted was domestic and international, written and oral, statutory and case law. Some historians imagine European law to be similar to a digital operating system. Like Windows, European law operates in the background. How Could This Happen? The legal systems that emerged in Europe after the French Revolution broke away from a ius commune that acknowledged wide differences in local practices yet recognized the importance of a shared normative framework that united all Europeans. They replaced commonness with distinctiveness, creating separate national system. These new systems identified law with legislation which was enacted by a sovereign assembly of elected representatives. If each country had its own norms, how could a shared European law emerge? Some historians have suggested that the wish for greater collaboration among the countries joining the Community/Union reminded at least some Europeans of their common past. Many Europeans had shared not only a common law (ius commune), but also a common religious creed and a belief in primacy on natural law. If a shared ius commune could bring together thousands of distinct local arrangements by offering overreaching principles, conceptual categories, methods of analysis, and shared norms, why could the same not happen now? 86 In 2008 the Common Frame of Reference was drafted by a committee appointed by the European Commission. It is a framework of common rules that European and national legislators, courts and individuals could adopt in legislation, interpretation or commercial activity. It covered areas such as marketing relations, service contracts, sales law, lease of goods, unjustified enrichment and transfer of property. The Common Core of European Private Law project established in 1993 at Trent, identified commonalities in member states’ private law including contracts, torts and property. The creation of a common code for all the members of the European Union was difficult to do, because of the different legal systems between the states, especially with UK, which as we know wasn’t used to a codified normative system. There are some differences between Continental system and English law. Continental systems focus on reason, while common law is anchored in experience. Continental systems give primacy to legislation, while common law prefers judge-made law. Actually Continental law is similar in this field because judges have huge discretion in their interpretation of the law. They often incorporate doctrinal assessments and precedents into their thinking and hand down decisions that charge rather than interpret the law. Also, administrative continental law depends on judge-made law. In European law, these distinct normative sources together have created a new order that is not Continental or English and neither traditional or modern, but instead constantly reinventing itself as it adapts to new circumstances, conditions and constraints. Europe in a Globalized World Many of the challenges facing the European Union were not particular to Europe, but to the way modern law developed in a globalized world. For example, in the US growing interstate commerce led many people to desire the unification of law across the country. Jurists gathered to draw up and propose model codes, which they hoped would be adopted by most states. Moves to unify the law were also pursued by international bodies such as the International Institute for the Unification of Private Law (UNIDROIT), established in 1926 as an auxiliary organ of the League of Nations. In 1940 became an independent intergovernmental organization. UNIDROIT aims to modernize, harmonize and coordinate private and commercial law across the globe. It has 63 member states and its experts have prepared dozens of proposals for international conventions, model laws, and legal regulations and guides. 87 Law is changing and we can see it from many aspects. The first issue is the delegation of lawmaking from legislature to state bureaucracies. It allows the transfer of important regulatory functions to unelected officials who, as employees of state commissions, bureaus, agencies, ministries, and programs. They execute orders and adjudicate conflicts enacting new rules. These officials decide cases, build up bodies of precedent and elaborate internal regulations regarding procedure and substantive law. Also we have the demise of state monopolies over regulation because of norm-making by transnational bodies such as commercial companies, sports associations, Internet giants, and intergovernmental organizations. We need a new paradigm that can replace the old imaginary of a society made of undifferentiated equal citizens linked by an abstract social contract and expressing their desires by electing representatives to a Parliament. The new paradigm would recognize the power of groups and group solidarity as well as the persistence of inequalities and differences by unmaking the metaphors proposed by the French Revolution.