European Legal History PDF

European Legal History Chapter 1; Introduction 2 important events was crucial to trigger an acceleration in the process of European integration; -1992: Maastricht treaty, transforming the European community into the EU -the collapse of the communistic bloc leading to the expansion of the EU to the...

European Legal History Chapter 1; Introduction 2 important events was crucial to trigger an acceleration in the process of European integration; -1992: Maastricht treaty, transforming the European community into the EU -the collapse of the communistic bloc leading to the expansion of the EU to the east. This resulted into a new movement in which the idea of an unified European law became central. -->there is a bigger constituency for a common private law of Europe. During the 1990's, leading academics from many European law faculties pushed for a new European ius commune: common private law of Europe. However, this is still far from reality and also faces much criticism; especially the idea of giving up national authority over justice and internal security is impossible to think of. Another important thing is the difference between civil law (prevailing in continental Europe) and common law (prevailing in England). There are several historical explanations for the difference in legal tradition; - the historical context in which continental Europe became codified. -the majority of European codes spring from 2 models; the French code civil and German BGB -codification laws did not break with pre-codification laws. Civil Law: (the focus of this book) - originated in the rediscovery of ancient Roman law in the eleventh century; central here was the collection of Roman law by Byzantine Emperor Justinian in the Corpus Iuris Civilis, and canon law. This resulted into the European ius commune. Common law: In England the effects of Roman law were less severe. Codification was rejected and a system of private law based on custom and case law continued to hold sway. Part 1: Ancient Roman Law Chapter 2: Ancient Rome (1000bc - ad565) A. The Politics and the State Livy and Virgil: famous historians who poured the myth about the foundation of Rome into being; the story of Romulus and Remus, relating back to the Trojan hero Aeneas in which Rome was supposedly founded in 753 BC. It shows to what extent Roman culture was influenced by these of the Greek, which predates the Roman conquering of Greece colonies. The Romans admired Greek culture, and consciously adapted elements from them; however they did see themselves as the masters of Greek culture as they changed it to their own liking. Roman contribution is mostly in law, even now much of European legal tradition originates from the Romans as roman culture reached a high state of development also on a legal point of view, due to the pragmatic viewpoint of the Romans. First period of Roman history relates to the regal period; a period of first roman kings. -->after Romulus, there were six further kings; of which the last three were Etruscan; meaning the Etruscans played a prominent role in the early growth of the town. -->The Etruscans did not form a unified state, they constituted a loose federation of city-states of which Rome became part. The last kings broke through the co-operation between Latin-Sabine aristocracy (inhabitants of Rome) and kings, and amassed an almost unlimited imperium of political, legal and military power which led to the revolution of 509BC. In 509 BC, the last king of Rome was driven out and Rome became a republic. The Latin and Sabine population consisted of a number of large gentes; clans, by which each clan was led by the pater familias (the clan leader). All property within the clan was originally collectively held, but later the leaders of the clan laid personal claim on the largest share of the clan's property. Gradually this led to a class distinction between patricians (the leaders and property owners) and the plebeians (the ordinary people). After the coup, which was led by the patricians, the king's old imperium was divided among magistrates which were to be elected on a yearly basis. The early years of the republic were to be marked by the class struggle between patricians and plebeians; in which the patricians in the first few centuries controlled the senate and the magistrature, the most politically influential bodies. Only gradually also the plebeians gained political power; -introduction of plebeian tribunes, -342 BC; one or both consuls had to be plebeian -the laws of plebeian tribunes became generally applicable. -->that being said, the system remained oligarchic. Therefore it was more realistic to talk about a senatorial order vs the plebeian order in later years. 451 BC: codification of the ius civile in the law of the Twelve Tables, to reduce the power of the priesthood as they were no longer free to interpret the law as they wished. People became senators after having served a term of quastor or tribune; people slowly worked their way upwards. The young republic was almost constantly in war with its neighbours; 390 BC: Rome defeat against the Celts; Rome got sacked. 340 BC - 280 BC: Rome recovers and succeeds in overcoming the main opponents; started to build an empire. -->The problem was that the Romans did not turn Italy into a centrally administered polity since they remained Rome's structure as that of a city-state. A defeated tribe or city would lose part of its own territory and give up control over a foreign policy, but remained having much local autonomy in internal affairs. Between 300 BC- 0 AD, the Romans conquered the entire Mediterranean region, and a large part of the Middle east. The success of Rome can be explained by: -Roman nature; aggressive, bellicose and militaristic nature. -Rome proved excellent at war, exceptionally good at assimilating the subdued peoples and harnessing them to its own interest, and through their long experience of its many ways granting Rome many strategic advantages. -With the victory over Carthage, Rome established hegemony over the western Mediterranean. In the last century BC, Augustus added the last large independent kingdom (Egypt) to the empire. During the regal period, Rome had three important political institutions: -the king -the senate -the popular assemblies. After the coup of 509 BC, the senate and popular assemblies had all the power, in which the senate became the most important institution. Cicero said: Roman republic, a hybrid form in which the consuls constituted a monarchial element, the senate the aristocratic element and the popular assemblies the democratic element. Popular assemblies: -gatherings of all Roman, adult male citizens -elected the magistrates; consuls, preators and censors -layered voting system which made sure that the power of the masses was neutralized, and the elite had the most power. -->this led to the creation of plebian assemblies, which became the true engine behind the legal process in the last years of the republic. Senate: -originated from the meeting of the patres and the gentes -after the king was put away, the senate took over day to day management. -consisted of all former magistrates who were elected via a system of co-optation. -the senate was subject to a strict hierarchy. Magistrates: -annually elected officials of the republic -originally just 2, as time progressed more magistrates were added and even further expended after 81 BC due to the dictator Sulla who reformed the magistrature; -principle of collegiality; every office by at least 2 magistrates -rule that magistrates hold office for only one year -immunity of magistrates while in office !-lowest magistrate is quastor: assistants of the consuls, supervision of finances. !-aedile: responsible for public buildings and other daily activities and were judges in commercial disputes. !-preator: responsible for administration of civil law, or others were given control over a province !-Consul: political and military leaders of the Roman republic. !-Censor: made lists of people suitable for ranks of magistrates. Another important political aspect; the priesthood. -priest represented in the pontifical colleges, in which the priest retained authority over the religious courts. In cases of emergence, a dictator could be appointed for life to restore order, which occurred twice; dictators Sulla and Caesar. The spectacular expansion of the Roman empire radically transformed Roman society and the Roman state, as the conquest of the empire caused new social tensions; -soldiership led to the demise of family farming and small landholding throughout Italy. The lands ended up in the hands of a few wealthy families. -slaves also played an increasing role in trade, mining and industry. During the second century BC, a new social class emerged; the equites. This was the part of the citizenry who were wealthy enough to perform their military service on horseback, who benefited from the economic stimulus from the expansion of the empire. The expansion of Rome tested the organization of the empire beyond its limits; the structure of the state was not equipped with the efficient administration of an entire empire. -->much was left to local magistrates. -->This led to all kinds of problems and thus reforms had to be made. Gaius Marius: the army was expanded to include all layers of society, and the soldiers gained wages -- the army was professionalized. Due to less control on local governors, some individuals gained great renown power and wealth. (Caesar and Pompey) 133 BC; Age of Revolution, Rome was plagued by political unrest and outright civil war. --first century BC; division in the senate between the optimates (constitutional and social status quo defenders) and the populares (radical minority; advocates of reforms who sought support from the equestrian order and the plebs) Roman reforms were unsuccessful to keep local generals at bay; -1st civil war; against Marius and Sulla. Sulla became dictator for life who made lots of reforms. -Then triumvirate between Crassus, Mgnus and Caesar, which led to the second civil war won by Caesar. After the death of Caesar, a third major civil war broke out. After the annexation of Egypt, Octavian (Augustus; family of Caesar) returned to Rome, which was the start of the imperium of Rome. Augustus wanted to restore the republic and did not enjoy total supremacy. However, he remained in power and created peace and stability within the empire. -He also introduced a certain degree of central administration, and it started to look more like a real empire as provinces were given a genuine local administrator with control. -After Augustus's death, his stepson Tiberius became leader which led to the start of the Principate. -Augustus did however grant himself with far reaching auctoritas (authority) by giving himself a cumulative magisterial position which granted him much imperium. -However, to imply that he wanted to return to the senate, he wanted to be seen as princeps inter pares; first among equals, or as princeps senates, principal senator. -Much of the old institutions remained there, however the emperor did gain most control over time. The principate saw the biggest expansion of the Roman empire. Until Hadrian (117) came and started in defense of the empire, in which the power within the empire was ensured. -First two centuries of the Principate was a period of relative peace, pax romana, it was transformed into a genuine empire. -the local elites were now finally successfully associated within the empire (they became Romanised), and also the Roman law became applicable throughout the entire Roman empire. -main problem within the principate was that the emperor was not an official title, which made rules of succession problematic. -the emperors curbed the power of magistrates by giving them to new offices, entrusted to members of the equestrian order. -this established a full civil service, based on hierarchy, controlled by the emperor. The civil servants provided a guarantee for an efficient, centralized system of administration. -also the army grew in size. The Roman underwent a crisis in the 3rd century (235-84) -Rome was threatened by the Persian empire -The northern frontiers and the border with the Danube were under increasing pressure from Germanic tribes living outside the empire. The Roman army was placed closer to the Mediterranean instead of at the border, this allowed for a small army but it also meant that it would take a long time before a counter-attack could have been undertaken. It worked originally due to the policy of permanent terror; however this did no longer work when proven that the Roman army was not capable to fight against the Persians. -->Therefore the army was reformed; it increased in size and was focused around the disputed areas. Also the bureaucracy and political power moved closer to the front line. However, the increasing of the army was only possible if the government increased taxes, which had some effects: -in the long run, it changed the parameters for co-optation between imperial government and local elites and influenced the royalty of the elites. -Romanised elites loosened their ties to the empire. -It would change the cost/benefit equation of being part of the empire. The crisis was resolved when Diocletian (284-305) became emperor, whereby the imperium became a full monarchy and moved from the principate to the Dominate. Diocletian divided the empire between two imperial colleges, and divided the bureaucracy up accordingly; split the empire in two, hence reform of the political structure of the empire. The emperor became a true monarch, seen as dominus (master) rather than princeps inter pares. 326: Constantine the great received power; -Accepted Christianity as religion, Christianity provided possibilities for legitimizing absolute power as God's vicar on earth, as this way how the emperor was seen, as God's vicar on Earth. Built Constantinople as the new, second capital in the east. -The empire was once again united, before the split between east and west. Dominate: -a military and bureaucratic monarchy. -"the mask had fallen" the emperor was identified with the state and also seen as Dominus et Deus (master and god) -the ruler was of a different order than the citizens. -the Senatorial order lost its position as a distinct political class. -to conclude, the legitimization of power shifted from an ascending theory of power to a descending theory of power. East and west were split up in which the western empire slowly disintegrated between 376-476. Why did the western empire collapse? -external pressure; Germanic tribe invading and dividing territories of the empire. -these tribes were drawn to the empire due to warfare, trade and diplomacy. -As the Germanic tribes had grown more prosperous and numerous due to agriculture, they were able to defend themselves against the Romans more easily. -Germanic auxiliaries had played an important role in defending the empire, now these soldiers were on the other side. -Huns and the Goths invading; Honorius of the Goths (400) sacked Rome. 439: Vandals captured Carthage, conquering the African key province-->Rome couldn't counter-attack due to the invasion of Attila the Hun (440) -->the most strategic important areas were lost. During the 460's-470's, the Germanic kings started to behave as local autonomous rulers and after a Germanic coalition led by Odocavar conquered Rome and deposed the last emperor, the Western Empire had officially collapsed. That being said however, the Western empire lived on in the mind of the people; -Germanic kings governed on a personal basis, leader of their people, not on a territorial basis. -the Eastern empire survived, as their key economic areas were saved. Emperor Justinian (527-565) slowly re-conquered parts of Italy, and this brief re-conquest of Italy had major consequences for legal history, it enabled Justinian to make his collection about Roman law in the Corpus Ius Civilis. Ders notu 2 B) Culture and the Law Throughout history, different kinds of law have been developed. -natural law -divine law; people thought that law originated from the god(s) or by even more ancient forces -positive law, man made law, -custom law: the basis for most primitive societies. The law accorded with the ideas and values common among the people; meaning it was essentially democratic. Greeks: Many Greek city-states were marked by social and political conflicts between the aristocracy and the majority of the people; the people demanded that the law be written down in order to reduce the power of aristocracy. By setting the law down on the stone or bronze tablets and displaying them in the market square, the law was brought within the grasp of the people. ->It was also recorded once and for all, and thus changing the law by introducing new statues was forbidden or otherwise made exceptionally difficult. Romans: The archaic Roman law of the Regal period and the Early Republic was closely intertwined with religion. The law was handed down from generation to generation and reached back to the most important ancestors. The Romans made a distinction between fas and ius: -Fas: governing relationship between gods and men; any runner who counters those rules was nefas (taboo), which would call the wrath of the gods to the entire population. The punishment was therefore in the interest of the entire Roman population. Usually referring to crimes like treasons. -Ius Civile: The rules governing the relationships between the Roman citizens themselves; anyone breaking ius would commit a inuria (a wrong). Ius designed to guarantee peace among the Roman citizens, as it protects private interests of the citizens, but leaves enforcement up to those private citizens themselves. (origin of the distinction between private and public law) -Ius Gentium: the law applying between Roman citizens and foreigners (developed later, during the late republic) it was a kind of universal private law. There did not exist legal rules for every dispute; only those disputes that were regulated by ius (meaning here; the law) could be brought before the court. Furthermore, did the law apply personally, and not territorially. A turning point for the early history of Roman law is The Law of the Twelve Tables (450 BC). It came out of a conservative reaction, the purpose of which was to stop the development of the law by the priests and to preserve traditional law. The law of the Twelve Tables contained primarily rules of private law, criminal law and procedural law and only a few rules of constitutional law and sacral law (related to religion). The law remained mostly static, however the law of the Twelve Tables was amended or added by the statute law from both the popular assemblies and the Senate. The civil procedure was based on the legis actio: A two-stage procedure; the stage in iure and that apud iudicem (before the judge). -First stage: defendant and plaintiff appeared before a priest who decided whether the dispute would fall under the provisions of the ius civile allowing for a trial to be held, meaning that it was checked whether one of the legis actiones applied. The first stage was thus very religious in nature. -Second stage: Evidence was tabled and the case was pleaded and adjudged, in which the judge or judges decided on which party told the truth. The jurors were citizens appointed by the priest. Most evidence was based on witness statements and oral pleadings. -->Romans used a method of private enforcement; it was up to the parties themselves to ensure that the judgements were ensured. -->Roman law existed with only a small number of legal remedies for specific cases. In principle, only those cases were a specific remedy existed could be taken to court. Laws making new remedies, like the lex aquilia, were rare. However the priest did have the power to make interpretations and thus amend the legis actones. The priest, having a monopoly on interpreting the law, had thus a significant amount of power. Additionally, the priest created new legal concepts and techniques. Under the late republic, the Roman law underwent a fundamental change: -->An autonomous legal science started to develop and the ius gentium developed. Rome changed under the late Republic economically, politically and culturally: -Rome became more influenced by the Greeks who had developed not really a legal science but had a strong philosophical tradition dating back tı 6th century BC. -Of everything contributed by the Greeks, dialectical logic was the greatest significance in the emergence of Roman jurisprudence. 5th century BC, the Golden Age of Athens; Socrates, Plato and Aristotle stemming from that period. Main Greek philosophical tradition; the sophists: -Challenged link between human and divine law, basis of law was consent among citizens and was thus not divine in origin. -As it is not divine in origin or nature, the human law does not necessarily sustain the order of things as wished by the gods. -Law is not immutable and eternal. -Antiphon; "people by nature concerned with their own interests and inclined to dominate other people, and thus the law of nature gives each human the freedom to trample on other human's rights. -->The sophist had taken an irreversible step by recognizing the existence of a law subject to human volition. (irade)(according to them it is mutable) Socrates: elevated dialogue into an art form due to his constant questioning and debating everything. Plato: rationalist, central in Plato's view is the allegory of the cave; for Plato everything on earth is no more than a shadow, an imperfect reflection of what is outside the physical world in the World of ideas. True knowledge of the world of ideas is ingrained in man, but we are not able to get hold of that knowledge. The study of physical phenomena of nature can never be truly understood. Aristotle: empirical; basic ideas about the Western science introduced by Aristotle. -the distinction between the physical and the ideal is not so sharp. Each phenomenon has two dimensions, matter and forms which each phenomenon has. -The most perfect form is god, which does not require matter since it is pure spirit. -the physical reality is continually evolving towards higher forms and ultimately god. -as there is a link between the 2 realities it is useful to study physical phenomena to derive general rules and categories in the empirical study of the concrete. -once these general rules and categories have been defined, one can discover more rules by which someone eventually arrives at unique concrete phenomena. Cicero: developed a theory of natural and human law -the natural law was the supreme law and it was the measure of objective justice that applied to all people. -he was an orator and he believed that the prime task for an orator is invention -->the search for right arguments to plead the case. -according to Cicero, the scientific study of the law is an application of dialectic logic. -influenced by the Stoa tradition; the stoics believed in the existence of a single, natural society of all men governed by a single law governing the entire universe. The Imperial Age The metaphysical dimension of natural law was not looked at, but the concept frequently used; it was not considered to be promulgated by the gods but was to be found in nature, inherently present in people and things themselves. Roman legal scholars associated the law of nature with the ius gentium, the law the Romans applied to aliens. Late Republic changed dramatically in the last centuries due to the expansion of the empire; -the courts were flooded with new kinds of disputes and cases; meaning that as Rome expanded the law needed to expand but this was difficult due to the static nature of the law of the Twelve Tables. Preator gained control over the justice system, as this magistrate received control over the proper administration of justice and the courts. No longer had the priest such legal power as their position were taken over by the preator. It was the magistrates, (especially the preator urbanus) who were responsible for the development of Roman law under the late republic. Preator gained more power, the preator created actio utilis by means of interpretation, whereby an actio in factum was a legal remedy granted by the preator, outside the existing laws. By doing so, the preator created new enforceable rights and duties. Papinianus: praetorian law is that which in the public interest the preators have introduced in aid or supplement or correction of the ius civile. There thus gradually emerged a second body of law besides the existing ius civile; the ius honorarium or ius praetorium. During the late republic, magistrates granted remedies for countless new case. In this way, they developed law to the needs of society. To restrict this power, the preator had to promulgate an edict on a yearly basis by which he announced which legal remedies he would be applying that year. The edict expanded year by year, and was as good as fixed at the beginning of the Principate. There also developed another legal procedure; the procedure per formulam: -the two-stage division was retained, however the two parties appeared before the preator and submitted their case. -the preators drew up new formulas for each individual case in respect of which they granted a praetorian action. -Later these formulas became standardized which outlined a dispute in general terms with fixed and variable elements. The formula existed of various elements: appointment of the judge presentation of the facts statement of the claim authority for the judge the judge in the second stage could only decide upon the fulfillment of the criteria of the formula by saying either yes or no. In the cases for ius gentium, a different preator was appointed which gradually increased rapidly in importance. Another change; an autonomous legal science developed practiced by a distinct group of legal specialists or jurist. Usually someone had to give legal advice in a dispute (any Roman citizen had the right to be assisted by an advicatus), which resulted into the emergence of the legal science. -these advocates were primarily orators, trained in rhetoric and debate emerged whether they should know what they were talking about meaning a minimal legal expertise. -Like advocates, jurors were drawn from the senatorial and magistraterial ranks. -only a number of senators became true legal legal experts. Cicero: "the activity of a jurist is threefold: respondre; giving advisory opinions about a case, aegere; acting, cavere; drawing up written documents like contracts." Overall, the Roman jurists of the late Republic were closely involved with legal practice, they helped transcend Roman law to its traditional formalism. However they were not system builders. Legal Literature: The most important form of legal literature from that time was collections of formulae and response; the legal opinions given. The most important collections of responsa were the digesta or pandectae which was a collection of advisory opinions by a single author. -another important legal document; commentaries in which the author commented on a particular source, like the commentaries on the edict by Ulpian and Papinian. Furthermore, the people wanted to seek a systematic system of the law, but this was an enormous challenge which took nearly two thousand years. -Some steps were taken however towards the systemization of Roman Law -->Gaius; the institutions; a subdivision in civil law still used; law of persons property and of procedure. Periodisation of Roman Law The Principate Emperor Hadrian (130 AD) instructs the jurists Julianus to record and fix the praetorian edict. Also collections of responses were made during the Imperial period. -->Emperors granted the privilege to the most authoritative experts, and thus associated themselves with the legal opinions. Gaius and Papinian believed that the scholars' opinions should become binding. The changes that were made during the Principate was also that jurists were no longer drawn from the senate, but joined the civil service. In this way, the jurisprudence was no longer independent from the emperor. Under the principate, a new civil procedure emerged; the coginito extraordinarie: -a one-stage trial -the judge who heard the case as well as rendered judgment was an imperial official. -the procedure emerged in the provinces; due to lack of sufficient people to judge, the imperial governor started to decide on cases himself. Therefore the distinction between the two-stages disappeared. -judge was a civil servant, it was thus possible to appeal to his superiors, up to the emperor. The popular assemblies lost their power in the legislative process in the principate. Legislative activity was largely confined to the Senate, where most decisions were introduced by the Emperor. Eventually, the emperor received a full monopoly over law development and could make law by himself. These imperial legislations were called constitutiones. During the Dominate, imperial legislation was by far the most important source of law; due to the vast amount of legislation made, it was necessary to publish these laws in major collections. -->These were collected in codoxes; the most important ones being the codex hermogianus (295) and codex Gregorianus (291). Also an imperial code was designed, the codex Theodosianus (438) Still there was a need for a more straight-forward and clear and clear-cut system of law, as well as more legal unity. -->Emperors made laws by giving some authors authority, and while others were prohibited. Laws of Citations: Only the works of Papinian, Ulpian, Paul, Modestinus and Gaius could be quoted in the context in a legal dispute. -By means of these rules, the emperors sought to inject order into the mass of scholarly opinions. Eastern Roman Emperor Justinian sought further codification of Roman Law. He appointed a commission to draw up a new collection of imperial constitutions; they were given the power to adapt legislation to make a complete collection that would replace existing codes. This resulted in the codex Justininanus of 529. Justinian also collected the texts of the classical jurists, which resulted in the digest, which had force of law. Justinian forbade other scholarly opinions from being cited. Justinian had frozen jurisprudence. Justinian had also created a learning book; institutions. -->This body of work became known as the Corpus Ius Civiles, which became the sole source of law, and became the most important legal document for centuries after that. The aim of jurisprudence during this era was suum cuique tribuere: giving each his due.