Comparative Law Spring 2003 Professor Susanna Fischer

1. Comparative Law Spring 2003Professor Susanna Fischer CLASS THREE HISTORICAL ORIGINS OF THE CIVIL LAW: ROMAN LAW

2. OPENING YOUR MIND TO COMPARATIVE LAW • Try to take a scholarly, objective perspective to other legal systems, putting cultural stereotypes and preconceptions out of your mind • Few legal systems are absolutely bad or are so good as not to be able to benefit from other ideas • Try not to assume that any law that differs from that of the United States is inherently inferior • Never close your mind to new ideas

3. TODAY’S CLASS • A flying tour of Roman law from the 8th century B.C. to the 6th century A.D. • We will focus in particular on the corpus juris civilis of the Emperor Justinian • We will see how Romans very gradually developed legal institutions and also developed “law as learning, in written form and subject to rigorous requirements of reasoning” (Glenn p. 119) • Roman law has high points and low points over this period

4. WHY STUDY ROMAN LAW? • John Henry Merryman has stated: “Roman law is often said to be the greatest contribution that Rome has made to Western civilization.” • The Romans (through jurisconsults) were the first to look at law as a kind of science for ordering the world, including people and property and their relationships. • Clarity, simplicity, orderliness of classical Roman law • Heritage of Roman law lives on today in many modern legal systems of the world

5. ROMAN LAW • Originally chthonic. Pontiffs interpret law • Rome originally a monarchy until 6th c. BC • Republican Rome: in 451 B.C. decemvirs write the Twelve Tables • Ius becomes lex • Issues decided by iudex (a lay juror) • Initially law quite draconian: e.g. winning party could kill debtor if did not pay up, but later becomes modified

6. Excerpt from the Twelve Tables • “If a man is summoned to appear in court and does not come, let witnesses be heard and then let the plaintiff seize him. If he resists or absconds, the plaintiff can use force. If he is too ill or too old, let the plaintiff provide a beast to bring him; but if he declines this offer, the plaintiff need not provide a carriage…If a man is killed while committing theft in the night, that killing is lawful. • Note – in entire Republican period, v. little statute law. Law is mainly case law based.

7. More from the 12 Tables • TABLE IV • Law II • If a father sells his son three times, the latter shall be free from paternal authority. • TABLE IV • Law III • A father shall immediately put to death a son recently born, who is a monster, or has a form different from that of members of the human race.

8. Development of Roman Law in the Later Half of the Republic • 367 BC est. of Praetor • Formulary procedure moderates harshness of Twelve Tables • After Punic Wars of 3d c. BC, Empire leads to development of ius gentium, applicable to non-citizens (peregrini) unlike ius civile • From 250BC there arises a class of jurisconsults

9. Roman Law During the Empire • Expansion of Roman citizenship • Growth of imperial legislation • 0-200 A.D. was the classical period of Roman law: the law had become very sophisticated despite the barbarism of some ruling emperors like Nero and Caligula • 2d c. AD : Gaius– a jurist teacher whose student work, Institutes, became very influential for centuries after his death (though not in his lifetime). Divided into Persons, Things, Actions

10. Imperial Roman Jurists • Edict of Emperor Caracalla (l.) (212 A.D.) made many Empire residents into Roman citizens. Now, even if they did not know Latin, they had to follow ius civile. • Most distinguished third century jurists: Papinian, Paul, and Ulpian

11. 4th C. AD: An Empire Under Siege Divides in Two • Germanic tribes (Visigoths, Goths, Vandals) attackthe frontiers of the western part of the Roman empire • On the death of Emperor Theodosius in 395, the Roman Empire divides into eastern and western parts. • Empire is christianized. Emperor Constantine’s Edict of Milan of 313 ends persecution of Christians.

12. Post-Classical Roman Law: Less Precision and Less Consistency • Cognitio procedure replaces formulary procedure – professional judge replaces iudex; courts opened up to direct access • Best brains turn away from law • Law becomes less precise • Growing provincialism of law and increase of customary law leads to lack of consistency of Roman law throughout the empire • In the 5th century, Emperor Theodosius II prepares a code which has not survived but has been substantially reconstructed

13. Collapse of Rome • Visigoths sack Rome in 410 A.D. • In village, villa, cross-roads, district, field down every roadway, and at every turning, death, grief, destruction, arson are revealed. In one great conflagration Gaul is burning. Why tell the deathroll of a falling world which goes the accustomed way of endless fear? Why count how many unto death are hurled when you may see your own day hurrying near? -5th Century Roman poet

14. The Start of What Some Have Called the “Dark Ages” • In the 5th century, as Rome collapsed, invaded and plundered by Germanic tribes (which some have called “barbarians”), Europe entered a period of widespread poverty, illiteracy, and intellectual stagnation

15. JUSTINIAN AND THE CORPUS JURIS CIVILIS • When and where did the Roman emperor Justinian live?

16. JUSTINIAN AND THE CORPUS JURIS CIVILIS • When and where did the Roman emperor Justinian live? • Ruled in Constantinople between 527 and 565 with his wife, the actress Theodora

17. Justinian’s Empire • Military actions • Architecture • Law

18. Map of Justinian’s Empire: ca 565

19. CORPUS JURIS CIVILIS • What is this? • Why was it created? • Who drafted it – was it Justinian’s work?

20. CORPUS JURIS CIVILIS • Justinian ordered the preparation of the Corpus Juris Civilis by a commission under the supervision of the jurist Tribonian. • The commission included lawyers, a civil servant, law professors

21. CONTENTS OF CORPUS JURIS CIVILIS • What are the 4 different parts of Justinian’s compilation, which came to be called the corpus juris civilis, called? • Describe each part

22. CONTENTS OF CORPUS JURIS CIVILIS • What are the 4 different parts of Justinian’s compilation, which came to be called the corpus juris civilis, called? • Code (update of Theodosian code) Digest (anthology of extracts from great jurists like Ulpian), Institutes (textbooks for students), Novels (constitutions) • Digest/Institutes became law in 533, and revised Code in 534.

23. JUSTINIAN’S GOALS • Justinian believed that the post-classical Roman law of his time was decadent. He wanted to restore past glories, remove obscurities, errors, conflicts, and doubts, and create a systematic whole. • Did he succeed?

24. JURISCONSULTS • What approach did Justinian take toward legal commentaries? • Was this a realistic approach, in your view?