Cardilli Roman Law Notes PDF

Cardilli - Roman Law notes LESSON 1, 22/10/2020 Difference between harmonization and unification of law. Harmonization of law Democratic instrument to build a common law to a community. The rules have to be built from the bottom to the top, there is not a power from the top that...

Cardilli - Roman Law notes LESSON 1, 22/10/2020 Difference between harmonization and unification of law. Harmonization of law Democratic instrument to build a common law to a community. The rules have to be built from the bottom to the top, there is not a power from the top that can impose a rule. Building from reality to create a rule that can be good for everyone. e.g. in Europe if we need to build a rule for every European country, the single states have different rules - so how can we find a rule for everyone? If we use the harmonization of law we don’t impose a rule from the top, but we try to build a common rule for everyone, and the national system should work to change their national laws to this rule. Unification A legal power on the top (the European commission for example) that imposes a rule and every country has to adopt it. So it is less “democratic” Harmonizing is more difficult than unifying (that seems to be easier) but it suits more a globalized world since we have built a unified economic and social world but every country keeps its legal rules. The aim is to create international law instead of national law. In Europe, we have national sovereignty, national jurisdiction and national law. Why didn't we reach a European common law? For a lot of decades, Europe moved to the unification of law but it never happened completely. It’s easy to build a common economy and a common coin like the euro but it’s not easy to find a common rule in the marriage, family or contract law because each country has its own rules and its own jurisdiction. The international law is not enough, we didn’t reach the target from a legal point of view. Example of failing of unification: Brexit Difference between NATION and STATE STATE NATION Modern idea, not present in Ancient Age Ideological tool that justifies the state (political notion born with the It refers to a group of people united by fragmentation after the fall of the Roman origin, history, culture, ethnicity, or Empire, but the modern State idea starts language. Socio-cultural entity with the Peace of Westphalia, 1648) Cannot be created consciously Can be created consciously No fixed territory Cannot exist without sovereignty Can exist without sovereignty Independent political entity with fixed More stable than a state geographical boundaries ‘’rex in regno suo est imperator’' Not as stable as a nation United by laws and regulations May consist of one or more nations of people Example: why is Italy not a nation? Italy, before the unification, was a very diverse territory with different customs and languages (e.g. the Italian language comes from the dialect of Tuscany - the same thing for the Romans that made Latin, a regional language, the language of all) The idea of Nation in a globalized world The idea of nation is too small for a globalized world we need law as globalized as the economy. Building common values in society through LAW is the only way to maintain peace and avoid violence. International law is not enough, we need to think ‘’supernational’’ Universal law examples 1) Roman law - ius gentium (III b.C.)= Supernational legal system with universal vocation 2) Ius commune - law common in Europe (Middle Ages, from XI a.D.) LESSON 2, 29/10/2020✗ → 991^9129 Ancient models of harmonization of law Roman ancient law = IUS GENTIUM (legal supranational system with universal Vocation/ law of nation – in many translations). aeepnematiae law → It is not: 1. Public International law In the modern idea of nation (territory, people, sovereignty), these three elements make clear that the national law should produce effects in that specific territory. How is it possible for national law to go outside the borders of the territory? By having an agreement with another country and creating an inter- national law (lit. between two or more nations). The ius gentium existed independently from international agreements (the Romans had ‘’foedera’’). It was a law common to citizens and foreigners not depending on the existence of an international/ political agreement. 2. Private International law Ius gentium is common to all human beings, therefore is not an international private law. In fact, international private law only tells what national law you have to apply in international problems 3. International Commercial law Today the legal framework is trying to build a common commercial rule for all over the world, called “lex mercatoria’’. Ius gentium was not a lex mercatoria of the Mediterranean, because it was an original creation by the Romans, they didn’t base it on something pre-existent. Codification of Emperor Justinian (Corpus Iuris Civilis) It was divided into 3 parts: Code, Digest, Institutes. The Digest is the most important part, where there are fragments from books of ancient famous jurists. It is the only way to know the ancient Roman law. (e.g.Ulpianus, Pomponius). Fragment 9, Gaius, Institutes, Liber I Every people (populus) that is governed by statutes and customs (leges et mores) observes partly its own peculiar law and partly the common law of all mankind. That law which a people established for itself is peculiar to it and is called ius civile (civil law) as being the special law of that civitas (state), while the law that natural reason establishes among all mankind is followed by all peoples alike, and is called ius gentium (law of nations, or law of the world) as being the law observed by all mankind. It explains the difference between ius Civile and ius gentium. Ius Gentium is a law common to all human beings, not a law of a single nation. It is a supranational, not international, law. How did they achieve this? Romans didn’t exist as a national or ethnic reality, it was a sort of artificial process and so was their law. They took some customary law from Sabinians, Latins, Etruscans, etc --> a complexity that they tried to harmonize. In the I century b.C. Rome became the centre of Europe so that they tried to create a law with universal vocation, that could go beyond language, culture, religion. Example: Sale contract structural pillar of the trade. I. Roman Civil Law: Mancipatio = very formal act with solemn words and gestures II. Greek Law: Prasis = less formal, exchange of goods with written acts to testify the sale III. Ius Gentium: EMPTIO VENDITIO (contract of sale) --> it’s an agreement based on bilateral obligations and on the principle of good faith. Is a universal model that can be used by everyone, even if two people don’t share the same language, religion, law, and culture. -Agreement: without any written act or formal words, the most important thing is that the people reach a consensual agreement, on the good and on the price. When they agree, the pact starts to have legal force. - Bilateral obligation: they are both bonded by an obligation (payment – delivering of goods). - Principle of good faith: the respect of the words pronounced was very important. They didn’t have to explain what the faith was, but Romans were not sure that the other cultures shared this principle, so they had to explain it and fix it as a fundamental principle in the contract of sale of ius gentium moral obligation to pay/sell the good and disclose everything about it. Universal Vocation (of the ius gentium) - Personal universal vocation, everyone can use it (e.g. the Chinese legal culture acknowledged this in the 18th and 19th century, they wanted to understand roman law as a common cultural and legal heritage of the world) - Historical universal vocation. When the Romans created ius gentium they couldn’t imagine the fact that after 2000 years Europe would adopt it. The big heritage of roman law is not the civil law, but ius gentium because its content was the most universal one. LESSON 3, 12/11/20 What happened between the Ancient Roman Age and the 11th century? Each political reality started to create its idea of law, because of the fragmentation of the Roman Empire in national jurisdictions ---> Iuria Singularia: first idea of national law, with sovereignty over a set territory The Codification of Justinian disappeared until the 11th century, when it started being studied in Bologna. Irnerius – a master of the liberal arts, like rhetoric, grammatic - started to read the Digest of Justinian in the library of Bologna and studied this legal doctrine. After 10 years of study, scholars started to ask him to teach this new culture. Four students started the Ius study at the University of Bologna ----> birth of the first University in the world The Codification of Justinian starts from the 12th century to be the law common to all Europe, but as a subsidiary law, coming after national law. However, it started becoming the most important law in Europe ---> Ius Commune: The ius commune, in its historical meaning, is commonly thought of as a combination of canon law and Roman law which formed the basis of a common system of legal thought in Western Europe from the rediscovery and reception of Justinian's Digest in the 12th and 13th centuries. Ius commune was codified ≠ ius gentium of Romans was not codified, it was open to interpretation and innovation What was IUS COMMUNE based on? Ius Civile + Ius Canonicum: law inside Justinian’s Code + a law made by the Church ---> utrumque ius Francesco Calasso (in ‘’Il medioevo del diritto’’) explained how the ius commune played a very important role to share legal culture all over Europe, creating a breach towards modern law. About ius Canonicum: (a) the relationship between man and God is individual (b) this structure allows forgiveness of actions (c) the will of the individual is crucial While Roman law was NOT individualistic, ius Canonicum brought a change of pattern and values. We must recognise how our culture is shaped by both classical culture (Roman and Greek) + Christianity. Evolution of legal science Legal science becomes VERY important with this codified law. Legal interpretations in the Middle Ages (XII-XVII AD), were limited by the words of the codification, to try and put these legal rules in their current time: Legal glossators (> glossa): they made marginal/interlinear annotations interpreting the original Roman legal texts. This practice started with Justinian’s Digest in Bologna (XI cent.) Commentary (XIV-XV cent.): Italy and France were very important – Mos Italicus, Mos Gallicus – Study of law becomes important and faculties of law spread everywhere. A lot of people who could study wanted to go to study in France and Italy (travelling students). Scholars start to write their own books of interpretation of law, instead of writing glossa. (Cino da Pistoia, Baldo degli Ubaldi, Bartolo da Sassoferrato). Legal Humanism. (XVI cent.) With humanism in general, and specifically in the legal area, we have a new sensibility for history and the centrality of man in the world, how we arrived here and what we can do for the future. This was the time of the Renaissance in Europe, where people sought a new birth of society. They believed this would come through a return to the eternal principles underlying classical society. Before legal humanism, a lot of scholars misunderstood the Greek writing (e.g. understanding π as ff). The Islamic culture/Arab translations were useful for the translation of Greek culture, brought by Arab intellectuals in Spain (thanks to Averroè and Avicenna mainly, in the XII cent.) School of Natural Law: (17th-18th cent AD) Grotius, Pufendorf, Thomasius, Wolf. Applying logic can build a perfect legal system – systematic structure of private law that could be used forever (utopist thinking, because law should change with society and mirror it) New legal systematic structure of private law: 4 pillars 1) Homo --- persona --- subject of law: in an individualistic view, the question of the moderns is ‘’Who is the subject of law? Who can act producing legal effect?’’. The subject of law could also be not a human person, but nonetheless subjects of law (company law, association law, etc.) 2) Res --- things --- (juridical) goods: Romans did not consider the difference between juridical and non-juridical goods. Now, for example, the sea could be a property of a state to exercise power over. Law now tells the reality of things, not vice-versa. We can say, for example, if the air could be a subject of law (while for Romans was an abstract common concept, not an individual property) 3) Typicity of human acts --- will --- juridical act: a lawful act or expression of will intended to have legal consequences. 4) Typicity of relations --- juridical relations: is a legal relationship between people, governed by  private law; it deals with the rights and duties of parties LESSON 4, 19/11/2020 What do we mean by Roman legal tradition? There is a common material in European countries that comes from Roman law: this could be used for harmonization of law in Europe DEMOCRACY: ancient model and modern one [check out Luciano Canfora, “Ideology of Democracy’’: democracy is an ideology] Two types: - Representative Democracy: the one we have today; people vote their representatives in the Assembly - Direct Democracy: people themselves vote directly about laws, about the ruler, and everything regarding public affairs Even today, DEMOCRACY is stated as the first principle in the Statute that founded the EU. By that, they mean representative democracy → this is the leading idea of democracy in the modern state. Why? A direct democracy cannot be realised in the dimension of the nation-state: the number of citizens is too large ≠ in the Greek polis. When Rousseau wrote the ‘’Du Contrat Social’’, after the French Revolution, he was for the rebirth of the Roman Republican model. He thought France could be again like Ancient Rome, whose institutions he studied in depth. [2 currents in French Revolution: 1. one for the prevalence of bourgeoisie; 2. one for Republicanism, led by Rousseau]. However, he realised that it was impossible to create it in the modern age → the right dimension to realise it would be the city, not the nation- state. Today, in Europe, democracy is encoded in constitutions and international treaties, but individual people don’t play an important role in the European policy, which is shaped by national governments. It’s a problem of democracy deficit in the EU. Today, in Italy, the 3‘’legacies’’ of direct democracy: petition, referendum, and law with popular initiative (what is now an exception, it used to be the norm). Best form of government in Ancient age GREEK THINKERS From Aristotle’s “Politics’’ (4th century BC): But inasmuch as ‘constitution’ means the same as ‘government,’ and the government is the supreme power in the state, and this must be either a single ruler or a few or the mass of the citizens, in cases when the one or the few or the many govern with an eye to the common interest, these constitutions must necessarily be right ones, while those administered with an eye to the private interest of either the one or the few or the multitude are deviations. For either we must not say that those who are part of the state are citizens, or those who are part of the state must share in the advantage of membership. Our customary designation for a monarchy that aims at the common advantage is ‘kingship’; for a government of more than one yet only a few ‘aristocracy’ (either because the best men rule or because they rule with a view to what is best for the state and for its members); while when the multitude govern the state with a view to the common advantage, it is called by the name common to all the forms of constitution, ‘constitutional government’ (politeia). [...] Deviations from the constitutions mentioned are tyranny corresponding to kingship, oligarchy to aristocracy, and democracy to constitutional government; for tyranny is monarchy ruling in the interest of the monarch, oligarchy government in the interest of the rich, democracy government in the interest of the poor, and none of these forms governs with regard to the profit of the community. In ‘’La Politica (Politics)’’, Aristotle analyzes over 150 forms of government (since every polis had its own type) to produce this very in-depth work of classification. The focus is not on the form of government, but on whether the government governs in the interest of all people (good forms) or based on the interests of just a part of the people, the ruling class (deviations). He describes 6 main forms of government: Government of one Government of few Government of many Good forms Kingship/Reign Aristocracy Politeia Deviations Tyranny Oligarchy Democracy Aristotle says that the best form is Politeia = government of the middle class, based on law, which should have granted socio-political stability (note: Aristotle sometimes uses this same word not to refer to a specific form of government, but to refer to ‘’constitution’’ in general). Democracy is a negative deviation of the good model, politeia, because it is the government of many people - the poorest ones - going against the other ‘’classes’’ (like it happened in the bolshevik revolution). After Aristotle, there was a change: democracy became the word to describe the good form, while the bad deviation is ‘’ochlocracy’’ (different words, same ideas). ≠ Today, Democracy is the value, the default. The Greek historian Polybius (206 BC - 118 BC) is mostly famous for ‘’The Histories’’, which focuses on the rise of the Roman Republic. He went from Greece to Rome and he asked himself how Rome could have become such a huge power and political success of a small city with no starting specific culture and history. The answer was the form of government. Polybius is important for his analysis of the mixed constitution or the separation of powers in government (which was also influential on Montesquieu's The Spirit of the Laws). As for the Roman constitution, it had three elements, each of them possessing sovereign powers: and their respective share of power in the whole state had been regulated with such a scrupulous regard to equality and equilibrium, that no one could say for certain, not even a native, whether  regard to equality and equilibrium, that no one could say for certain, not even a native, whether the constitution as a whole were an aristocracy or democracy or despotism. And no wonder: for if we confine our observation to the power of the Consuls we should be inclined to regard it as despotic; if on that of the Senate, as aristocratic; and if finally one looks at the power possessed by the people it would seem a clear case of democracy. What the exact powers of these several parts were, and still, with slight modifications, are, I will now state. The Roman Republic Constitution had 3 elements coexisting with sovereign power and different competencies: Consuls → monarchy element Senate → aristocracy element The public assembly → democracy element This mixed system granted stability and was resistant to the theory of anacyclosis. Anacyclosis states that three basic forms of "benign" government (monarchy, aristocracy, and democracy) are inherently weak and unstable, tending to degenerate rapidly into the three basic forms of "malignant" government (tyranny, oligarchy, and ochlocracy). LESSON 5, 26/11/2020 ROMAN THINKERS Polybius’ answer to anacyclosis was the Roman Republic Polybius division was later considered again by Cicero (106-43 BC), in ‘’De Re Publica’’ (55-51 BC): Cato (1) used to say that our constitution was superior to those of other Cities (civitates) (2) on account of the fact that almost every one of these other commonwealths had been established by one man, the author of their laws and institutions; for example, Minos in Crete, Lycurgus in Sparta, and in Athens, whose form of government had frequently changed, first Theseus, and later Draco, Solon, Clisthenes, and many others; and last of all, when the State lay bloodless and prostrate, that learned man of Phalerum, Demetrius, revived it again. On the other hand our own commonwealth (res publica) was based upon the genius, not of one man, but of many, it was founded, not in one generation, but in a long period of several centuries and many ages of men (3). For, said he (Cato), there never has lived a man possessed of so great genius that nothing could escape him, nor could the combined powers of all the men living at one time possibly make all necessary provisions for the future without the aid of actual experience and the test of time. Notes: (1) Cato the Censor (Marco Porcio Catone) was an important personality of II cent. BC (he lived in what is now Monte Porzio Catone). This is the thought of Cato himself. (2) We cannot talk about states here, the city is the political dimension of the Republic (3) There are 2 different models: in the Greek poleis, the power came from the genius of a single founder + statutory law was the instrument for the foundation of the city. In the Roman civitates, there are no single mythical founders, the political structure came out from customary law and the use of the institutions of the time, generation by generation. This explanation by Cicero is a political choice. If we read Livio’s ‘’Ab Urbe condita’’ (I sec AD), we see that there are  Cicero is a political choice. If we read Livio’s ‘’Ab Urbe condita’’ (I sec AD), we see that there are actually founders and statutory law (The 12 Tables, 451-450 BC). Even Cato stresses in other works the role of statutory law. But here, it’s the theory of Cato in its historical books, ‘’Origines’’(174-139 BC), in which he did not want to give protagonism to someone, but stress the role of the community of Roman people. The history of Rome is the history of Romans, with a collective effort through institutions. Roman Republic is the result of a human experience → customary law is the mirror of society, it’s somehow more ‘’democratic’’ than statutory law made by the governor. If in Aristotle the value was governing for either personal or common good, the value here is equilibrium. Time is used to test if a form of government is good or not, in Roman thought. With this more ‘’democratic’’ Roman approach, starting from customary law, the central conflict of the tragedy of Antigone is avoided: conflict between ethos and nomos (customary law of the family vs. statutory law of the polis) Cicero, De Re Publica, 1.25-26 Scipio: Well, then, a commonwealth is the property of a people. But a people is not any collection of human beings brought together in any sort of way, but an assemblage of people in large numbers associated in an agreement with respect to justice and a partnership for the common good. The first cause of such an association is not so much the weakness of the individual as a certain social spirit which nature has implanted in man. For man is not a solitary or unsocial creature, but born with such a nature that not even under conditions of great prosperity of every sort [is he willing to be isolated from his fellow men]. Such an assemblage of men, therefore, originating for the reason I have mentioned, established itself in a definite place, at first in order to provide dwellings; and this place being fortified by its natural situation and by their labours, they called such a collection of dwellings a town or city, and provided it with shrines and gathering places which were common property. Therefore every people, which is such a gathering of large numbers as I have described, every city, which is an orderly settlement of a people, every commonwealth (res publica), which, as I said, is "the property of a people", must be governed by some deliberative body if it is to be permanent. And this deliberative body must, in the first place, always owe its beginning to the same cause as that which produced the State itself. In the second place, this function must either be granted to one man, or to certain selected citizens, or must be assumed by the whole body of citizens And so when the supreme authority is in the hands of one man, we call him a king, and the form of this State a kingship. When selected citizens hold this power, we say that the State is ruled by an aristocracy. But a popular government (for so it is called) exists when all the power is in the hands of the people. And any one of these three forms of government (if only the bond which originally joined the citizens together in the partnership of the State holds fast), though not perfect or in my opinion, the best, is tolerable, though one of them may be superior to another. For either a just and wise king, or a select number of leading citizens, or even the people itself, though this is the least commendable type, can nevertheless, as it seems, form a government that is not unstable, provided that no elements of injustice or greed are mingled with it. Notes - Here Cicero puts his ideas in Scipio’s mouth - Res publica is not power! Res is the reality that belongs to people (also said res populi) - What do we mean by people? People are not the same as the modern idea of nation: people are bonded by an agreement between them, a choice to stay together. They stay together by sharing a law, where the main principle is the equality between the members of this community - not because they share the same language, culture or a defined territory (the modern nation definition, which is now having some problems to survive in the globalized world)  ↓ 3 principles of Scipio/Cicero’s res populi: 1. Agreement, association of members through their will 2. Sharing a law common to all of them 3. Utilitatis communio, the common interest of the community LESSON 6, 01/12/2020 LIBERTY: ancient concept - modern concept Benjamin Constant (1767-1830) [Swiss-French political activist and writer on political theory and religion. A committed republican during the French Revolution. He refined the concept of liberty, defining it as a condition of existence that allowed the individual to turn away interference from the state or society.] Notes from “The Liberty of Ancients Compared with that of Moderns” (1819) Constant wants to underline the difference of meaning between the liberty of the ancients and the modern idea. Today, when we think of liberty we think of individualistic liberty “First ask yourselves what an Englishman, a Frenchman, and a citizen of the United States of America understand today by the word ‘liberty’. For each of them it is: the right to be subjected only to the laws, and not to be arrested, imprisoned, put to death or maltreated in any way by decision of one or more individuals the right of each person to express his opinion, choose a profession and practise it, dispose of his own property and even to misuse it; the right to come and go without permission, and without explaining what one is doing or why; the right of each person to associate with other individuals—whether to discuss their interests, or to join in worship, or simply to fill the time in any way that suits his fancy; and each person’s right to have some influence on the administration of the government—by electing all or some of the officials, or through representations, petitions, or demands that the authorities are more or less obliged to take into consideration.” It means being free without asking for permission. This is reflected, in the modern treaties, in how human rights are expressed in a list under an individualistic perspective. The main point is the individual, we lost the capability to consider the community as a whole. Ancient world: “The liberty of the ancients consisted in carrying out collectively but directly many parts of the overall functions of government, coming together in the public square to:  discuss and make decisions about war and peace; form alliances with foreign governments; vote on new laws; pronounce judgments; examine the accounts, acts, and stewardship of the magistrates; call the magistrates to appear in front of the assembled people; accuse the magistrates and then condemn or acquit them. But while the ancients called this liberty, they saw no inconsistency between this collective freedom and the complete subjection of the individual to the authority of the group. All private actions were strictly monitored. [...] The individual is nearly always sovereign in public affairs but a slave in all his private relations (freedom of opinion, religion, work)” The element of SLAVERY: In the ancient world, there was slavery - liberty meant the contrary of slavery. Being free meant to be free to participate in political life → direct democracy. This was possible, according to Constant, right because of slavery → slaves work so that few free citizens are free to spend their time in political matters. In the ancient world, the political entities were the CITIES - still small compared to modern states, no matter how populous and rich - : driven by necessity against one another, these cities fought or threatened each other constantly. WAR was the price the free city-states had to pay to purchase their security, their independence. As a necessary result of this mode of existence, all states had slaves. The modern world looks totally different from that. The smallest states of our day are incomparably larger than Sparta or Rome were. Even the division of Europe into distinct states is more apparent than real, thanks to the spread of enlightenment (at Constant’s time - even more now because of globalization). “War precedes commerce, because they are merely two different ways of achieving the same end. If I want something that you own, commerce is simply my tribute to your strength, i.e. my admission that I can’t just take the thing I want. Commerce is an attempt to get through mutual agreement something that one has given up hope of acquiring through violence. [...] What leads us to resort to commerce is our experience that war exposes us various obstacles and defeats. When we turn to commerce we are using a milder and surer means of making it in someone else’s interests to agree to what we want. War is impulse, commerce is calculation; and for just that reason a time must come when commerce replaces war. We have reached that time.” ‘’Finally, thanks to commerce, religion, and the moral and intellectual progress of the human species, there are no longer slaves among the European nations. All the professions, all provision for the needs of society, must be done by free men” Consequences on the modern state: - The bigger a country is, the smaller is the political importance allotted to each individual. - The abolition of slavery has deprived the free population of all the leisure they used to have when slaves did most of the work - Commerce doesn’t leave intervals of inactivity in men’s lives, as war does. The free people of antiquity would have languished under the weight of miserable inaction if it hadn’t been for the constant exercise of political rights. All of that would now only cause trouble and fatigue to modern nations, where each individual - occupied with his speculations, his enterprises - doesn’t want to be side-tracked from them. - Commerce inspires in men an intense love of individual independence. It supplies their needs, satisfies their desires, without any intervention from the authorities. Comparing the 2 meanings of liberty To be free in the Roman republic/Greek democracy was better than the modern nation-state, in terms of the direct influence of the citizen on the whole community, BUT there was a big inequality in society → slavery was the ‘’cost’’ to pay to have some citizens take full commitment to political life in society → slavery was the ‘’cost’’ to pay to have some citizens take full commitment to political life According to Constant, we cannot make a comparison with today because slavery does not exist anymore (in most places). Liberty has gained a different and abstract meaning that relates to a single person, without taking into account his role in the community. Constant, as a Republican and witness of the French Revolution, refers to POLITICAL liberty as freedom from the impositions of the king → principles of libertè, egalitè, fraternitè Then, this liberty became the single liberty of the individual against the state → we have lost the meaning of liberty as the responsibility of each citizen to realise the “res publica’’ as “res populi’’ (in Cicero’s words). - But the individual does not live alone, freedom must be considered within the community, not only as individual rights - Karl Marx (19th century) ☭ In the capitalistic society there are 2 classes: 1. working class/proletariat - 2. the capitalists Capitalists are the business owners who organize the process of production and who own the means of production such as factories, tools, and raw material, and who are also entitled to all profits. The other, much larger class is composed of labor. Laborers do not own or have any claim to the means of production, the finished products they work on, or any of the profits generated from sales of those products. Rather, proletarians work only in return for a money wage, and they need work to survive. Because of this uneven arrangement, capitalists exploit workers, also by taking advantage of the “surplus value’’. Marx argued that slavery had not been abolished at all, it had only taken another name in modern society. Man is free, but he is only free to be a slave. The only way to stay alive is to work hard in the interest of someone who exploits you. Role of the state in Marxist theory: it should grant the equilibrium between these 2 clashing classes. The model of the Soviet communist society did not work, as it destroyed freedom. But that does not mean that we cannot imagine another model. With the advent of the mass society (20th century), in which only market and consumers exist, the dualistic idea of Marx changed. The only meaning of our existence is that of potential consumers. We are a mass of easily influenceable and predictable people, making it easy to maximise the profits. The individual perspective is an advantage to capitalism. The consumer is the next stage of the worker, therefore, the conflict of class that Marx imagined does not exist anymore as he intended it. LESSON 7, 03/12/2020 Ideological precondition of capitalism: private property as the paradigmatic liberal right Code Napoléon [the French civil code established under the French Consulate in 1804 and still in force, Code Napoléon [the French civil code established under the French Consulate in 1804 and still in force, although frequently amended] is built around the private property principle → the liberal thinking of that time thought that was the only way to come out of the feudal society of the Middle Ages. In the 19th century, the old models of collective property were thrown away because they were against the ideological principle of private property. Commerce between individuals was the core model. The owner had the possibility to buy, sell, and dispose of the property however he liked. [≠ today, the idea of debt/obligation is the fundamental element of capitalism] In the 19th century, public property was that of the nation. It is more an extension of private property since the owner is not an individual but the state [≠ collective property, which could only be found in a communist society. The cooperative model is another idea to develop collective property. Italy is one of the most developed countries of the world regarding the cooperative model, especially in Emilia Romagna, because of the great influence of the Italian Communist Party. Benefits of the cooperative model: all the owners can share the risks and the advantages, they are not only workers but also partners] Back to the principle of liberty... Epictetus → 50 – 135 AD. He was born a slave. Early in life, he acquired a passion for philosophy and, with the permission of his wealthy owner, he studied Stoic philosophy which allowed him to rise in respectability. Epictetus obtained his freedom after 30 years of slavery, and he began to teach philosophy in Rome. About 93 AD Emperor Domitian banished all philosophers from the city, and Epictetus went to Greece, where he founded a philosophical school. [Stoicism: a school of Hellenistic philosophy founded by Zeno of Citium in Athens in the early 3rd century BC. It is a philosophy of personal ethics informed by its system of logic and its views on the natural world. According to its teachings, as social beings, the path to εὐδαιµονία (happiness) is found in accepting the moment as it presents itself, by not allowing oneself to be controlled by the desire for pleasure or by the fear of pain, by using one's mind to understand the world and to do one's part in nature's plan, and by working together and treating others fairly and justly. It was one of the most revolutionary movements in philosophy and in society, both Greek and Roman one. The stoic thinking paved the road for Christianity] The work of Epictetus focuses on a single topic: freedom. We find these concepts also in other stoic philosophers: Seneca, for example. He has an individualistic way to look at freedom → a consequence of the Hellenistic culture The first use of the Latin word libertas was the libertas of roman people from the period of the Etruscan kings. Epictetus says that liberty (ἐλευθερία) means political liberty (just like in the French Revolution it was liberty from the impositions of the king) [Hellenism: the name of this period is justified by the extent of the Hellenic culture in most of these areas, due to the Greek political presence especially in Asia after Alexander's conquests, but also to a new wave of Greek colonization. In consequence, the Hellenistic Period is usually accepted to begin in 323 BC, with Alexander's death, and ends in 31 BC with the conquest of the last Hellenistic kingdom by Rome, the Lagid kingdom of Egypt. Politically, the Hellenistic Period is characterized by divisions from Alexander's former empire, with endless wars between the διάδοχοι and their successors. The model of the city-state which dominated before was replaced by the different kinds of kingdoms, with more centralized power. People, therefore, were not active citizens of their community anymore. In this political climate, Hellenistic philosophers went in search of goals such as ataraxia (un-disturbedness), autarky (self-sufficiency), and apatheia (freedom from suffering), which would allow them to wrest well-being or eudaimonia out of the most difficult turns of fortune. This occupation with the inner life, with personal inner liberty and with the pursuit of eudaimonia is what all Hellenistic philosophical schools have in common.] Epictetus Diss. 4. About freedom “He is free who lives as he wishes to live; who is neither subject to compulsion nor to hindrance, nor to force; whose movements to action (ὁρμαί) are not impeded, whose desires attain their purpose, and who does not fall into that which he would avoid (ἐκκλίσεις ἀπερίπτωτοι). Who then chooses to live in error? No man. Who chooses to live deceived, liable to mistake, unjust, unrestrained, discontented, mean? No man. Not one then of the bad lives as he wishes; nor is he then free. And who chooses to live in sorrow, fear, envy, pity, desiring and failing in his desires, attempting to avoid something and falling into in sorrow, fear, envy, pity, desiring and failing in his desires, attempting to avoid something and falling into it? Not one. Do we then find any of the bad free from sorrow, free from fear, who does not fall into that which he would avoid, and does not obtain that which he wishes? Not one; nor then do we find any bad man free. If then a man who has been twice consul should hear this, if you add, ‘But you are a wise man; this is nothing to you’: he will pardon you. But if you tell him the truth, and say, ‘You differ not at all from those who have been thrice sold as to being yourself not a slave, what else ought you to expect than blows?’. For he says, ‘What, I a slave, I whose father was free, whose mother was free I whom no man can purchase: I am also of senatorial rank, and a friend of Caesar, and I have been a consul, and I own many slaves’.—In the first place, most excellent senatorial man, perhaps your father also was a slave in the same kind of servitude, and your mother, and your grandfather and all your ancestors in an ascending series. But even if they were as free as it is possible, what is this to you? What if they were of a noble nature, and you of a mean nature; if they were fearless, and you a coward; if they had the power of self- restraint, and you are not able to exercise it. ‘And what’, you may say, ‘has this to do with being a slave?’. Does it seem to you to be nothing to do a thing unwillingly, with compulsion, with groans, has this nothing to do with being a slave? ‘It is something’, you say, ‘but who is able to compel me, except the lord of all, Caesar?’. Then even you yourself have admitted that you have one master. But that he is the common master of all, as you say, let not this console you at all: but know that you are a slave in a great family. So also the people of Nicopolis are used to exclaim, ‘By the fortune of Caesar, we are free!’. However, if you please, let us not speak of Caesar at present. But tell me this: did you never love any person, a young girl, or slave, or free? ‘What then is this with respect to being a slave or free?’ Were you never commanded by the person beloved to do something which you did not wish to do? Have you never flattered your little slave? Have you never kissed her feet? And yet if any man compelled you to kiss Caesar's feet, you would think it an insult and excessive tyranny. What else then is slavery? Did you never go oat by night to some place where you did not wish to go, did you not expend that you did not wish to expend, did you not utter words with sighs and groans, did you not submit to abuse and to be excluded? But if you are ashamed to confess your own acts, see what Thrasonides says and does, who having seen so much military service as perhaps not even you have, first of all went out by night, when Geta (a slave) does not venture out, but if he were compelled by his master, would have cried out much and would have gone out lamenting his bitter slavery. Next, what does Thrasonides say? ‘A worthless girl has enslaved me, me whom no enemy ever did’. Unhappy man, who is the slave even of a girl, and a worthless girl. Why then do you still call yourself free? and why do you talk of your service in the army? Then he calls for a sword and is angry with him who out of kindness refuses it; and he sends presents to her who hates him, and intreats and weeps, and on the other hand having had a little success he is elated. But even then how? Was he free enough neither to desire nor to fear? Now consider in the case of animals, how we employ the notion of liberty. Men keep tame lions shut up, and feed them, and some take them about; and who will say that this lion is free? Is it not the fact that the more he lives at his ease, so much the more he is in a slavish condition? And who if he had perception and reason would wish to be one of these lions? Well, these birds when they are caught and are kept shut up, how much do they suffer in their attempts to escape? And some of them die of hunger rather than submit to such a kind of life. And as many of them as live, hardly live and with suffering pine away; and if they ever find any opening, they make their escape. So much do they desire their natural liberty, and to be independent and free from hindrance. ‘And what harm is there to you in this?’ ‘What do you say? I am formed by nature to fly where I choose, to live in the open air, to sing when I choose: you deprive me of all this, and say, what harm is it to you?’. For this reason we shall say that those animals only are free, which cannot endure capture, but as soon as they are caught they escape from captivity by death. So Diogenes also somewhere says that there is only one way to freedom, and that is to die content: and he writes to the Persian king. ‘You cannot enslave the Athenian state any more than you can enslave fishes’. ‘How is that? cannot I catch them?’. ‘If you catch them’, says Diogenes, ‘they will immediately leave you, as fishes do; for if you catch a fish, it dies; and if these men that are caught shall die, of what use to you is the preparation for war?’. These are the words of a free man who had carefully examined the thing, and, as was natural, had discovered it. But if you look for it in a different place from where it is, what wonder if you never find it?” Notes: Notes: - Epictetus shows us here the traditional mentality: the legal distinction between liberty and slavery. - Then he proceeds to show the ethical point of view. Some freemen from a legal point of view, are slaves in an ethical view, and vice-versa. - Everyone is under the will of the emperor → a political judgement: the Roman Empire is a despotic system. The Roman emperor is the master of the world and everyone one in the empire is not really free - The model is the natural freedom of the animals. Wild animals are free by nature, they are not meant to live in captivity. Men can put them in captivity, but that does not mean that they are not free anymore → they maintain their natural freedom, that’s why they try to escape from captivity. This concept came from stoic thinking. [Animals are important also in Roman culture: eagle, wolf - wild and free animals] Ulpianus → a prominent Roman jurist (170 - 223 ca AD) 1. Ulpianus, Book I, Institutes. > from the Digest (534 A.D.) of Justinian (482-565 A.D.) “Those who apply themselves to the study of law should know, in the first place, from whence the science is derived. The law obtains its name from justice; for (as Celsus elegantly says), law is the art of knowing what is good and just (ius est ars boni et aequi). (1) Anyone may properly call us the priests of this art, for we cultivate justice and profess to know what is good and equitable, dividing right from wrong, and distinguishing what is lawful from what is unlawful; desiring to make men good through fear of punishment, but also by the encouragement of reward; aiming (if I am not mistaken) at a true, and not a pretended philosophy. (2) Of this subject there are two divisions, public and private law. Public law is that which has reference to the administration of the Roman government; private law is that which concerns the interests of individuals; for there are some things which are useful to the public, and others which are of benefit to private persons. Public law has reference to sacred ceremonies, and to the duties of priests and magistrates. Private law is threefold in its nature, for it is derived either from natural precepts, from those of nations, or from those of the Civil Law. (3) Natural law is that which nature teaches to all animals, for this law is not peculiar to the human race, but affects all creatures which deduce their origin from the sea or the land, and it is also common to birds. From it proceeds the union of male and female which we designate as marriage; hence also arises the procreation of children and the bringing up of the same; for we see that all animals, and even wild beasts, appear to be acquainted with this law. (4) The Law of Nations is that used by the human race, and it is easy to understand that it differs from natural law, for the reason that the latter is common to all animals, while the former only concerns men in their relations to one another.” 4. Ulpianus, Institutes, Book I. “Manumissions also, are part of the Law of Nations, for manumission is dismissal by the hand, that is to say the bestowal of freedom; for as long as anyone is in servitude he is subject to the hand and to authority, but, once manumitted, he is liberated from that authority. This takes its origin from the Law of Nations; since, according to natural law all persons were born free, and manumission was not known, as slavery itself was unknown; but after slavery was admitted by the Law of Nations, the benefit of manumission followed, and while men were designated by one natural name there arose three different kinds under the Law of Nations, that is to say freemen, and, in distinction to them, slaves, and as a third kinds under the Law of Nations, that is to say freemen, and, in distinction to them, slaves, and as a third class, freedmen, or those who had ceased to be slaves.” Notes: Manumission is the liberation of a slave. The name of the act comes from the perspective of the owner. This concept does not exist in natural law, because, according to natural law, all men are free. Here the legal distinction between slavery and liberty does not matter anymore. The slave, from a natural point of view, is free even when he is a slave. Our current society is based on substantive slavery, even though there isn’t a formal one that can be defended in tribunal, like it was in ancient times. m LESSON 8, 9/12/2020 - FROM NOW ON NOT INCLUDED IN THE MIDTERM- PRIVATE LAW Modern Civil Codes Roman law Law of persons personae law of things res law of property actiones law of contracts law of obligations law of succession Roman perspective In Latin, the word ‘’persona’’ meant, in the beginning, ‘’mask’’ in theatre. It’s a symbol/representation of the physical human person, not the reality. ‘’Homo, homines’’ is the real human. In Roman Law, there are 3 kinds of human persons with different conditions: slaves, freemen, freedmen. ‘’Persona’’ can be the freeman, the freedman, and even the slave. A slave is a person too, not a thing. Romans had the idea that the human person is never perceived alone, but always inside his community (social, political, family, village, universal, etc → a concept later affirmed by Hegel) - In the family, the human person can be the father, the son, the daughter, the workers, etc - In the city, the citizens or the foreigners - In the universal society, the freeman, the freedman, the slave. It’s not a matter of individual role. The communitarian element is more important than the individual nature. The human person cannot live alone. (zòon politikòn - Aristotle) For them, it was easy to understand the sense of equality ≠ egalitarianism (absolute equality). For Romans, equality meant that each status had its own equality. The Roman Empire has never fully been an imperialistic power: the idea was not to make a lot of people subjugated to their power, but that everyone should become roman. There is indeed an imperialistic idea, subjugated to their power, but that everyone should become roman. There is indeed an imperialistic idea, but the goal was not to have a small leading group of Romans among everyone else, but to bring the foreigners to become part of the Roman population, while being able to maintain their culture. E.g. In this inclusion, the Romans incorporated the gods of everyone. The only problem was monotheism/ Christianity: was it possible to make Jesus a god of the Roman empire? It was not a problem for the Romans, but it was for the Christians, who could only accept their own god. Romans see these communities as circles that intersect each other. The role of roman law was defining the position of the ‘’point’’ (the individual) in those circles. Romans: man is a point among circles ≠ Moderns: man is just a point Modern perspective In the 17th century, with the School of Natural Law, came the idea that we had to talk about the human person not only in the community → birth of the ideology of the centrality of human beings as individuals, as alone subjects. The legal content therefore doesn’t have the role of managing the relationship of this individual with its communities, but managing every single person in its individualism. The individualism of private law of the 19th century came from this idea. The human person becomes the subject of law (= a person—physical or juridical—who in law has the capacity to realize rights and juridical duties), We have the subject with his will and his representation of reality. The human person is not a part of the reality - the big natural community - anymore, he just watches the reality, and his own point of view becomes important. Very strong subjectivism (= is the doctrine that "our own mental activity is the only unquestionable fact of our experience", instead of shared or communal, and that there is no external or objective truth). Reality doesn’t really exist, it’s our representation (Idealism) The idea of human rights was based on this individualistic point of view - but are communities getting lost in the process? E.g. kids that immigrate can cross the borders, but the adults of the family must go back to the home country (both in Italy and USA). Kids and parents should not be separated, the family community should be preserved. To recap...what is a person? 1. human person - as for the Romans, for which the community was central 2. legal person - an association, a corporation, etc, so a juridical person. Here “person” means just subject of law. We don’t care if the person is part of a community. 2 matters to address: - capacity to act - when can you can have some duties and rights (e.g. 18 years old in Italy) - legal capacity - when you can act and be considered in a legal view (e.g. in Argentina since conception - in Italy from birth) Both depend on the legal order. Relationship between: subject of law - will of the subject of law - object of law In ancient cultures, reality shaped the law, and the things useful for the human person. Now the human person can decide what nature one thing can have. E.g. the sea, for the Romans, was res communes omnium, not owned by a single state. A theatre was a public thing because it had been built with public money and was there for the public. A street is public for the same reason, without the need to pay for using it. Reality shaped the law. In the modern perspective, the law would like to shape reality: but this is not possible. As a country, I can say that part of the ocean is mine, but is it real? It’s a utopian view to think we can change reality with our will, saying what should be the object of law. Law can affect real social things, but cannot change the nature of things. we are not outside of it, we are not gods. LESSON 9, 10/12/20 PROPERTY Relationship between a person and an object: Ownership: I am the owner of the object, I can do what I want with it, whether I choose to use it or not. The strongest legal relationship between the human person and objects. Why is this concept so important? It lets us understand the different kinds of properties that came in our legal history. Inside of ownership, we can speak of property or, even better, properties (because there are different kinds of properties) Use: I use things, even when they are not mine. (e.g. taking the wood and using it for making a fire). Different kinds exist, like the usufruct (usu + fructus) = e.g. if I have a piece of land but cannot work on it, I can give it to another person to work on it. I maintain the ownership but give the right to use it the right to derive profit from it to somebody else. Connected to the concept of “Iura in re aliena” = real rights on things owned by others (e.g. a road that crosses a private property to reach another property otherwise unreachable. It’s like a dependency of pieces of land → Romas used the word servitus even for this kind of rights) Roman law has 3 kinds of properties: collective property → collective ownership + collective use public property (the most important) → collective ownership + individual use. Eg. a public land belongs to all citizens and each citizen can occupy a portion of this land in order to use it for himself. Principle of production: fruits belong to the citizen who works the land. private property: individual ownership + individual use. I can dispose of it how I want (e.g. I can sell it) History of private property ownership + use + having the power to sell In the Code of Justinian dominium/dominia (pl.) is mentioned as the most ancient type of right of property, recognized only to the cives (Roman citizens); it described the total and exclusive belonging of a thing to an individual. Other concepts mentioned were property, possession, iura in re aliena → most of these words have a different meaning today In the Middle Ages, new types of legal ideas came. Feudalism employed just another kind of iura in re aliena French Civil Code, 1804 (Code Napoleon) → also called the code of private property (while the German Civil Code is the code of the will, of the juridical act) ❖ I book: “Des personnes’’, rights of people, family law ❖ II book: “Des biens et des différentes modifications de la propriété’’. Biens = legal goods (whatever the subject of law thinks that could be) ≠ things  Art. 544: “Property is the right to enjoy and dispose of things in the most absolute manner, provided we do not overstep the limits prescribed by the laws and regulations.” Art. 545: No one can be compelled to give up his property, except for the public good, and for a just ❖ III book: “Des différentes manières dont on acquiert la propriété”. The only property that they mean with this word is private property → the liberal point of view prevails. Everything revolves around the issue of how I can have private property on things. From this point on, public property means the property of the state ( ≠ different from the roman public property), so it’s just an extension of private property. In capitalism A person/subject of law (can be a human person or legal person, like a company) is the capitalistic owner → he holds the private property on the machine used for production: machines in 19th and 20th could not function without human workers. Workers are acquired through a contract, in which the worker is going to give his own time to the capitalist for a salary in return. The products belong to the capitalistic owner, not to the worker who is alienated from what he produces. Here the law that what is produced belongs to the producer does not subsist. [Alienation = according to Marx, in a capitalist society, the worker's alienation from their humanity occurs because the worker can express labour - a fundamental social aspect of personal individuality - only through a private system of industrial production in which each worker is an instrument: i.e., a thing, not a person. He identifies 3 types of alienation: from the product, from the act of production, from human nature.] Two important elements of this phase: - private property as the central right of the human person - the contract as a free agreement between the owner and the worker (however, the worker has no choice, he needs to work to survive, he is dependent on the owner. it’s not formal slavery but it’s similar to it) Qn.: Can private property bring more democratization? Or is it democracy that brings private property? The first reform after the fall of the Soviet Union was the introduction of private property → but this didn’t immediately bring democracy. In China, the Property Law of the People's Republic of China, passed in 2007, codified property rights, while before there was only collective property. Did this bring democracy? Max Weber affirmed that capitalism can penetrate in every type of political form (monarchy, tyranny, democracy, etc). LESSON 10, 14/12/2020 Historical Recap In our tradition, we have a lot of material about the property of things. In the 19th century, private property was made the fundamental pillar of society by capitalist ideology. The selection of material of legal content is important for the development of capitalist society. The French Civil Code interprets property in just one way →private property, now considered the fundamental right. The owner has full rights on its property, he can dispose of it how he wants. The state cannot limit this relationship between the owner and the property. So many problems were caused by this free use of private property (e.g. putting toxic chemicals from my industry in the environment). There was a change of thought in the 80s of the 20th cent. → my use of property cannot be an abuse of social well-being. In Marxist theory, the end of the clash between workers and capitalists will be the winning of the workers, with the disappearance also of the state, since its function is that of creating an equilibrium between the 2 classes. The dictatorship of workers is the consequence of the end of the state → the between the 2 classes. The dictatorship of workers is the consequence of the end of the state → the only power existing is the dictatorship ( ≠ tyranny*) of all the workers together. The dictatorship of the proletariat is the intermediate stage between a capitalist economy and a communist economy, whereby the post-revolutionary state seizes the means of production, compels the implementation of direct elections on behalf of and within the confines of the ruling proletarian state party, and instituting elected delegates into representative workers' councils that nationalise ownership of the means of production from private to collective ownership. In the 20th century, our society changed: it is now a mass society, where we are all consumers, not a society based on classes anymore (true but still debatable); then there are supranational economic powers that sell to everyone in the world the same products. Which is the role of the state here? Can the state defend the people from these strong supernatural powers? [*No negative connotations were attached to the word tyranny in ancient Greece, where rulers of city states traditionally held the title ‘tyrant’, and no negativity was stigmatized to it. In Athens, before democracy set foot there, the last tyrant ruler was particularly unfair in using power, and the term got a bad name. Subsequently, Plato and his followers, by their political discourse, gave permanence to the attachment. In the Roman meaning, a dictator was a magistrate appointed during a crisis to handle a particular set of tasks. His power regarding those tasks was absolute, but when they were completed or six months passed, his dictatorship was over. In modern use we have stretched it, lost the original limitations and basically confused the meaning with that of tyrant. A tyrant is an absolute ruler with no explicit limits on his/her power. Depending on his/her own nature, a tyrant can be benevolent or harsh. Absolute power tends to corrupt so there are a lot more oppressive tyrants in history than benevolent ones. Although the two words are often used interchangeably, just drawing from their origins, a dictator is legitimately appointed for a specific time period to perform a specific job and has absolute powers in the performance of that job. A dictator can become a tyrant by overstepping his legally granted powers. A tyrant is an absolute ruler with no limits and likely rules illegitimately and oppressively.] Concept of NUMERUS CLAUSUS on REAL RIGHTS Real rights: ‘’real’’ from ‘’res’’ (=object, possession). The real rights in Roman law were: ownership, use, habitation, usufruct, servitudes, pledge, real mortgage, superficies, and emphyteusis. Ownership was a real right in one's own thing, a ius in re propria. In the Middle Ages, there were like 20-25 real rights on private property. But when private property starts being the pillar of society, private law starts to impose, as much as possible, that private property should be free, and few rights should be imposed on it. Since the French Civil Code, the number of real rights on things of another person were limited→ NUMERUS CLAUSUS, a result of ideology. If I limit the possibility to create real rights on the things of others, I can make private property stronger. CONTRACT LAW [Development of capital history: commercial - industrial - financial capital → the contemporary anakyklosis (ἀνακύκλωσις) for what it regards the history of economics, key to understanding the contemporary times] We have to distinguish 2 concepts: agreement (structure) / exchange (function) E.g. CONTRACT OF SALE: exchanging goods or services for money; most important contract in the world since the ancient world, it’s the 90% of contracts in the world. 1) Structure of contract: the role of the will in the agreement with another person. E.g I want to sell a book of mine for 10 euro. The buyer wants to buy it for 5 euro. There is no agreement. I can offer to sell the book for 8 euro. We start negotiating, balancing our will. In the end, we settle for 7.50 euro. This reached will is a new kind of will that is neither mine or yours: it’s the agreement → min. 2 or more wills reaching an equilibrium point, in the legal world.  it’s the agreement → min. 2 or more wills reaching an equilibrium point, in the legal world. 2) Function of contract: My purpose is to sell. Your purpose is to buy. I receive your money, you pay me based on the price. This agreement has an exchange function. Remarks: - The will does not get expressed when a seller sets a price and I just go there and buy, but it’s still a will. - The contract doesn’t have to explicitly state the exchange function - it was created as a new way of legal institute. There were ways to express exchange functions without contracts → sales in presence, sales in cash (for example at the market, we make an agreement for the immediate exchange between the money and an animal - it’s not a contract) Another element: OBLIGATION → a juridical duty to perform in the future. It's a specific characteristic of a contract. The agreement is not to make an exchange now, but to make it in the future. How can I be sure that you will respect this? Thanks to the obligation. In the present, we have just to decide which things we want to buy and how much it will cost. Contracts in Roman Law Roman jurists consider important the specific types of contracts, not the general notion of it. ❏ Typical contracts: sale, loan, hire, transport, etc. Roman system of contracts - Verbis cumtraere (formal words contracts) → just formal words are enough - Litteris c. (written words contracts) → the agreement is formalized in a contract - Re c. (contract with the delivery of a thing) → it is immediate, no need for obligation - Consensu c. (consensual contracts) → both parties of the contract will sacrifice something for the other. Bilateral obligation is present (principle of reciprocity). ❏ General notion of contract → some Roman jurists tried to elaborate general notions of contract Labeo: (Augustean time, I c. BC - I c. AD) Contract should have 3 elements: agreement + bilateral obligation + good faith. Bilateral obligation means having a fair structure, in which each party will sacrifice something for the other (the seller his own thing, the buyer the price paid). This agreement can be defended in the tribunal. All of this happens under the principle of good faith, a mandatory principle in this kind of contract. It’s part of ius gentium as a legal system. Pedius: (I - II c. AD) Agreement is a fundamental element of all kinds of contracts, also in real contracts, etc. Aristo: (I - II c. AD) Contract is agreement + causa. The agreement creates a fair structure, if there isn’t it’s not a contract but an act. LESSON 11, 15/12/2020 ULPIANUS + PEDIUS D. 2.14.1 Ulpianus, On the Edict, Book IV The justice of this Edict is natural, for what is so suitable to the good faith of mankind as to observe those things which parties have agreed upon?  observe those things which parties have agreed upon? (1) The term pactum is derived from pactio, and the word pax has also the same origin. (2) An agreement is the consent of two or more persons to the same effect. (3) The term "conventio" is a general one, and refers to everything to which persons who have transactions with one another give their consent for the purpose of making a contract, or settling a dispute; for as parties are said to come together who assemble from different places in one; so, also, the same word is applicable to those who, from different feelings of the mind, agree upon one thing; that is to say, arrive at one opinion. The term "conventio" is such a general one, as Pedius very properly says, that there is no contract and no obligation which does not include it, whether it is made by the delivery of the thing, or verbally; for even a stipulation, which is verbally made, is void, where consent does not exist. (4) The greater number of conventions have names that are peculiar to them, as, for instance, sale, hire, pledge, and stipulation. Notes - To follow what the parts have agreed upon is a question of good faith and justice and peace - Conventio: cum-venire → reach a common will. The agreement is a fundamental part of every type of contract. If it isn’t there, the contract is void. Agreement is the general idea, contract can be a type of agreement. (Consensus: cum-sentire → feel together) - Ulpianus mentiones Pedius (who lived about a century before him) D.2.14.5: Ulpianus, On the Edict, Book IV. There are three kinds of conventions, some of which relate to public matters, and some to private affairs. Those which are private are either based upon legislative enactments or upon the Law Common to all Humans (= ius gentium) (1) A public convention is one by which peace is made when two military leaders agree upon certain things to that end. D.2.14.7: Ulpianus, On the Edict, Book IV. Some conventions based on the ius gentium give rise to actions, and others give rise to exceptions. (1) Those which give rise to actions are not known by their own names, but pass under the special designation of contracts; as purchase, sale, hire, partnership, loan, deposit, and other similar terms. Notes: Notes: - Here we are not talking about agreements in general anymore, but about contracts. We may have an agreement that is not a contract, but in each contract we need an agreement. - There is a difference between public agreements (e.g. international agreements) and private agreements → the latter produce actions (meant as judicial actions) → the possibility to defend in court the agreement LABEO He lived in the Augustan period. His most famous rival, both in politics and in law, was Gaius Ateios Capito. Both founded the 2 most important schools of law in Ancient Rome, with two different approaches to law: Sabinian School, by Capito → more conservative approach Proculian School, by Labeo → more innovative He was himself an innovative jurist. Living in the transition period between Republic and Principate, he was in favour of the first. He even refused the role of consul offered to him by the emperor Augustus because he thought that the emperor was destroying the liberty of the Roman Republic. Here is another commentary of Ulpian on the Edict: D.50.16.19: Ulpianus, On the Edict, Book XI. Labeo, in the First Book On the Urban Praetor, defines the terms “to act," "to transact," and "to contract," as follows. He says that the word act has a general application, and refers to anything which is done verbally, or with reference to the thing itself; for example, in stipulation or loan. A contract, instead, is a mutual bilateral obligation (ultro citroque obligationem = from one side to the other), which the Greeks call ‘synallagma’ (συνάλλαγμα), as, for instance, purchase, sale, hiring, leasing, partnership. The term "to transact" signifies to do something without words. Notes: A⇄B here there are 2 different obligations A↔B here it’s the same bilateral obligation - If we see it as a unique obligation, the equilibrium of this bilateral obligation must be preserved in the time of the performance - if one party changes, the other changes too to maintain the equilibrium. - Labeo focuses on verbs, not nouns (act, transact, etc). Stipulation (verbal contract) and loan (real contract) are not contracts, but acts. The contract, in his opinion, is a mutual bilateral agreement, called synallagma (σύν, "together" e ἀλλάσσω, "exchange", therefore "mutual exchange") in Greek. - The agreement shall be found at the origin of the contract, at the moment when the parties agree on something: both parties are doing something for each other in the synallagmatic structure. This general idea of contract was useful for Labeo not only to explain better the reality of contract, but also to manage new kinds of agreement outside the typical structure of Roman Law contract.  but also to manage new kinds of agreement outside the typical structure of Roman Law contract. Now it is possible to imagine new contracts that did not exist before. 3 elements must be found to consider an agreement to be a contract: agreement synallagmatic structure (mutual obligation) - the only way to recognise and bring into force the agreement principle of good faith - mandatory principle [Difference between bilateral and unilateral contract: A bilateral contract is a legally binding agreement, typically in writing, with terms and conditions negotiated between two or more parties - A unilateral contract is written by one party, which determines all the terms and conditions but is the only party with any obligations under those terms] ARISTON D. 2.14.7.2: Ulpianus, On the Edict, Book IV. Where the matter has not been placed under the head of some special contract, but there is a ‘’reason” (causa) then, as Ariston very properly stated to Celsus, an obligation exists; as, for instance, I gave you something with the understanding that you would give me something else; or I gave you something with the understanding that you would perform some act, and this is synallagma (συνάλλαγμα), that is to say, a mutual agreement, and a civil obligation will arise therefrom. Therefore I am of the opinion that Julianus was very justly criticized by Mauricianus for his decision in the following case: "I gave you Stichus with the understanding that you should manumit Pamphilus; you manumitted him, but Stichus was evicted by another party." Julianus holds that an action in factum should be granted by the Praetor; but the former says that there is a civil action for an object which is uncertain, that is to say, one in prescribed terms, for there is a contract which Aristo calls συνάλλαγμα, and from this the action is derived. Notes: - Ariston tells us that is possible to bring also an atypical agreement to be an effective contract - In Ariston’s structure you need agreement + reason (causa) - If I gave you something (past) with the understanding that you would perform something for me (future), we have an agreement. But an exchange programmed for the future is not a contract. To have a contract we need that either of the parties gives to the other the object (the “sacrifice’’ of the object) - only in the moment one of the objects is exchanged, the parties are bound by a civil obligation that can be brought to trial; at this point, parties cannot remove themselves from it anymore. (this is causa?) LESSON 12, 16/12/2020 LAW OF OBLIGATION a tool of civil law legal systems, based on Roman law The idea of obligation in the XIX century→ Savigny is a German jurist (the 4 pillars of private law that we mentioned were elaborated by him). He asked himself: how is it possible to have an obligation without losing my freedom? How can duties and freedom exist together? E.g. in slavery, the slaves should perform a lot of duties, but freedom is not present. Instead, obligation cannot impress any kind of minority on the debtor, who he remains free. In the school of natural law, Grotius (Dutch humanist and jurist, XVI-XVII cent.) affirmed, in the book ‘’De Iure Belli ac Pacis” (1625) that performing obligation in favor of another person (like building for him a table for money) means giving away a little part of my freedom (portiuncula libertatis). Savigny still has this problem more than one century after. Savigny, however, doesn’t focus anymore on that little part of freedom, but on the power of the creditor → an obligation is the power (herrschaft) over another person, yet not over this person overall (in which case his personality would be destroyed), but over single acts which must be conceived as subtracted from his free will and subjected to our will. Since this power concerns only singular acts, the debtor remains free. While the main perspective was the one of the debtor in obligation, Savigny adopted a new perspective by describing the power of the creditor over the debtor. Critics: Jhering (another German scholar of the 19th cent.) argued that this idea of obligation is unreal: it’s impossible to speak about a power over something that does not exist in reality. A human act, before acting doesn’t exist, after acting it is already done. The only real act is the obligation to do something in favour of the creditor, but power does not exist without a tangible reality (e.g. in property, I have power over my car, an object that exists).7 Marx believed that the materialistic meaning of obligation was negatively affecting every kind of relation between subjects of law, as everything will be in the end represented as a problem of money. For Savigny, obligation makes sense only referring to the value of money in that particular context, and there are no other consequences if I don’t perform my obligation. Today, in the financial capital society ( ≠ industrial capital society) that we have been living in for 40 years, the problem is that any type of obligation can be seen as a problem of value and money → everything can be translated in economic value In Roman law We have mention of the obligation in the Institutes of Code of Justinian, not in the Digest. Institutes is a manual to help learners of law grasp the fundamental elements of private law. I.3.13: CONCERNING OBLIGATIONS. (1) Now let us pass to the discussion of obligations. An obligation is a legal bond (iuris vinculum) (2) by which we are reduced to the necessity of paying something in compliance with the laws of our city (secundum nostrae civitatis iura) (3). 1. The principal division of all obligations resolves itself into two classes; for they are either civil or praetorian. Civil obligations are such as are created by statute, or at all events are approved by the Civil Law. Praetorian obligations are such as the Praetor has established by virtue of his jurisdiction, and these are also styled honorary.  2.Another division is made into four classes, for they arise either from contract, quasi- contract, an illegal act (tort), or a quasi-illegal act. First, let us examine those arising from contract. Of them there are also four kinds, for they are created either by means of the delivery of things, by words, by writing, or by consent; and these We shall treat of one by one. Notes: - (1) This definition is given from the perspective of the debtor. Obligation is the passive part of the relationship. There is however no mention of the power as Savigny intended it. - (2) ”Iuris”, because the vinculum here is not a material one, but a metaphorical one from the legal point of view - (3) There is the plural “iura” because, in the classical period, the jurists thought that there were different kinds of law → so, who wrote this must be a classical jurist - The duty of the debtor to pay is expressed by strong words (reduced, necessity, bond, etc.) → the jurist who wrote this put together: duty & necessity; debt & responsibility/liability → together they give payment/performance. If the debt and liability are not together, we are not talking about obligation. I am free not to pay, but in that case there will be a responsibility against me (not a personal one, I am not going to jail) → a patrimonial responsibility* In ancient cultures we had the practice of taking hostages, where duty and responsibility were on 2 different people. Now, with this new concept, duty and responsibility come together in the same person. *Even more evident in capitalistic society. E.g. If you don’t pay the loan to your bank, you will have very severe material consequences, even though you don’t go to jail (so your liberty is restricted anyways). Main sources of obligation 1. Contract - delivery of things - by words - by writing - by consent 2. Quasi-contract → impossible to find an agreement between the parties (e.g. the negotiorum gestio = managing the affairs of another person without agreeing with them) 3. Illegal act → a tort mainly produces obligations of money payments 4. Quasi-illegal act → something that is illegal but I have done it without fault, so it’s not as bad [Then there is a section on the extinction of obligation, and all the other parts of private law] In Roman perspective, the debtor should be helped by law (favor debitoris), a heritage that we have lost, mainly thanks to the shift towards liberal ideology. Every day we bind ourselves through legal bonds to multinational corporations. Why is debt/obligation so important? It’s the only way from a legal point of view to “cheat’’ on time - it is a bet → I am going to perform my obligation in the next years, since I can’t do it now. It’s a strong legal tool to manage these relationships in the long term. LESSON 13, 18/12/2020 LAW OF SUCCESSION The reality here is the mortality of human nature, regulated by laws Important words - heres = heir → hereditas = heritage - testament: the juridical act to leave one’s last will to the future  - testament: the juridical act to leave one’s last will to the future - legitimate heirs: the heirs that have to be successor and cannot be denied this right - succession: sub-cedere, to take the place of another → successor - de cuius (is de cuius hereditate agitur) = de cuius indicates the person that is dead Roman Law Ius civile a. Ancient customary law: 2 different models - Political model: power of the father to decide his own heir (successor)→ from this model came the testament - Peasant culture model: the necessary succession of the family b. XII Tables (451-450 BC): fusion of the 2 previous models, which is a process of unification of law → “si intestato moritur, cui suus heres nec escit, adgnatus proximus familiam habeto” = if someone dies without having made a will and there is no legitimate heir, the inheritance will go to the closest relative The political model starts to have the priority over the peasant model, which comes into effect if the testament doesn’t exist. c. The law of the praetor (II century BC) Bonorum possessio: possession of the goods of the heritage → type of succession rule introduced in Rome since the last part of Republican Era. Also called "ius persequendi vel retinendi patrimonii", i.e. the right to claim or retain an heritage, granted by the praetor [= a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army; and as an elected magistratus (magistrate), assigned various duties] The bonorum possessor was not the heir by ius civile (heres), but in certain cases could defend himself against inheritance actions by the heir. According to whether the praetor's opinion as to succession was based on statute, on the will itself or on special circumstances, distinctions were made between: B.P secundum tabulas →gave the heritage to the heir mentioned in testament, even though it had some formality issues B.P. sine tabulis →without a testament, the praetor elaborated an order of succession, partly from ius civile, partly based on other criteria B.P. contra tabulas (hybrid model) → someone can inherit things even when they are not mentioned in the testament, if they have the “necessity” of succession (e.g. sons, daughters, wife) After Roman Empire In the Middle Ages and even more in the Modern Age, when the nation state model developed, there was a prevalence of the model of necessary succession of the family → it ensured the future to aristocratic families that were governing countries. Then, with the French Revolution and the centrality of private property, succession became an instrument to acquire private property. The French Civil Code gave everyone the right and the possibility to make a testament, but it fixed a percentage of the heritage that should go to the family and not to somebody else (there are different percentages in civil codes around the world about how much of the heritage should go to the family). Marx critic - First Marx: in The Communist Manifesto (1848, written with Engels), not only property should be destroyed but also the law of succession → this way, all the power of aristocracy will disappear (same idea of the French Revolution) - Second Marx: he understood that the matter of succession was important also for other classes; while private property on means of production should be abolished, we can maintain private property and inheritance on personal goods, which can be important for the human person.