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HISTORY OUTLINE
Focusing Question #1
I. ... )
1) Constitute the earliest Roman code of laws, supposed date of origin of the civil law tradition
2) Published by Roman forum, inspirational to CJC
B. ... Reactionary: sought to rescue deteriorating Roman legal system and restore the law to its former purity and grandeur
b. Codifier: sought to abolish all commentaries and treatises that made things conflicting and confusing; wanted to make law more accessible to the common man
c. Comprehensive, authoritative, systematic, reason
3) Wanted CJC to be ultimate authority, abolished previous law and records and forbade works of jurisconsults and commentaries
4) Four Parts:
a. ... Digest (Pandects; answers/responses of jurisconsults)
5) Divided into public law (organization of the empire, power to the emperor) and private law (beginnings of commercial law)
6) Significance to civil law tradition:
· Included law of persons, family, inheritance, property, torts, unjust enrichment, contracts; that Europe later codified this law (although modified by the 19th century civil codes) and the substantive area it covers is a principal distinguishing mark of the civil law tradition
· Represents and forms part of a recurring instinct or drive w/in the civil law tradition towards the organization, classification, systematizing and perpetual refinement of a hierarchy of law and legal principles
7) Fell into disuse with the fall of the Roman Empire
C. Jus Commune (1100s-1400s)
1) When Renaissance began, interest in law revived
2) Bologna (11th century) CJC resurfaced, first modern univ., revival of Roman civil law
3) Reasons for studying the CJC:
· Conception of Holy Rome: seen as imperial legislation, fit well with present day authority of pope and emperor
· High intellectual quality: superior to current system
4) Glossators and Commentators (scholars) developed body of literature on CJC
5) Take back from Bologna to own countries and establish universities, became basis for common law of Europe (jus commune)
6) Becomes a transnational law, creates a common body of law, common legal language, common method of teaching and scholarship
7) Commercial Law (Law Merchant): merchants developed principles and procedures that were efficacious to the customs and practices of their business or trade
II. How did what Merryman calls “the Revolution” affect the history and development of the Civil law tradition? ... Intellectual Revolution
1) Secularism:
· one of principal driving forces of revolution was secular natural law
· not derived from religious doctrine, belief or authority, men have certain natural rights and the government should secure these rights
· Impact on codes in content (inalienable rights/individual property rights) and attitudes of codifiers (anti-feudal, anti-aristocratic)
2) Rationalism (“Age of Reason”):
· Derive laws from rational principles, replace existing ones
· Faith in human reason to pull all principles of law together comprehensively
3) Rejection of Feudalism:
· Aspects of feudalism inconsistent with ideas of revolution
· Social status, public office basis for land ownership
· Aristocracy, judicial offices, property, judges supported landed aristocracy against peasants and working class
4) Separation of Powers
· Rational democratic government, state positivism (only state can make law)
· Prevent invasion of judiciary into lawmaking and execution of laws, subordination to legislature
· Legislative positivism: legislature conceived of as the exclusive source of law- “the law giver”
5) Ideology was utopian
C. Rise of Nation States
1) Nationalism
· Rise of nation state, national law arose, jus commune waned
· As national legal systems developed, nation states included aspects of their indigenous legal institutions to the codification
· Importance of expressing national flavor, rejected authority of jus commune but not content
2) Codification
· Napoleon’s Code (1804)- “Age of Reason”
· Expression of national identity/ideology/sovereignty
· Marked severance of authority from jus commune
· Constituted an effort to unify law within the state as well as insist that national law alone guide disputes and the legal system
D. Role of CJC: Tradition of Codes and Codification
1) Long standing tradition of organizing, systematizing law in order to give a rational arrangement of law
2) CJC refines it even further
3) Modern codes bring together in an organized, systematized way, further refining the CJC
4) Implicit in this tradition, belief that one can put together principles of law in a way that can guide others in the application of law
Focusing Question #2
I. In what ways might you encounter a “false déjà vu” in equating codes and codification in the Common law tradition with codes and codification in the civil law tradition? ... California Code and Civil Law similarties
1) Top of the legal hierarchy
2) Utilized greatly in both systems
3) Organized, authoritarian
4) Enacted by legislature, judges supposed to interpret
B. Differences: Civil Law
1) Codes much more important; authoritative, legislation is basis
2) Comprehensive; derive stability from code
3) Systematic/scientific; emphasis on certainty of law
4) Implicit is the belief that one can put together principles of law in a way that can guide others in the application of the law
5) Forward looking, makes break w/past; abolished prior law, pulls out general principles; past has intellectual relevance but not legal relevance
6) Looks at case law as supplemental to the code
7) Revolutionary aspect: revolutionary because of context and aspirations
8) Level of abstraction, theory, philosophical conceptualization of law, legal principles
9) Works deductively (draw understanding of a structure of principles to identify the appropriate rule to the given facts); work from abstract to specific
10) Confront ambiguity or uncertainty by going up to find general principle
C. Differences: Common Law
1) Conservative Nature
2) Judicial decisions are basis; stability from stare decisis
3) Codes not a rejection of the past, they are meant to supplement case law and perfect it
4) Works inductively (wrestles with specific fact patterns and discrete cases in order to identify guiding principles); works from specific to abstract
5) Confront ambiguity or uncertainty by going down into the facts and case law
6) Codes interpreted to avoid conflict with common law
7) Make no pretense of completeness
8) Judge not compelled to find a basis for deciding a given case within the code
II. How has history affected the relative influence and role of judges and scholars in the two legal traditions? ... Judges: Civil Law
1) Civil servants/functionaries; not in public eye (result of revolution)
2) Strict separation of powers, judges kept out of lawmaking
3) Lacks inherent authority and discretion to act independently of source of law
4) Can become judge at beginning of law career
5) Uncreative, no powers of law making
6) Expect that all judicial remedies, penalties, sanctions have basis in statutory law (reflects history that judges only apply or interpret the code)
B. Judges: Common Law
1) Heroes of the common law (in 18th and 19th century, common law courts aligned with the forces which transformed England from feudal to commercial/industrial society; common law judges aligned themselves with individual rights over the royalty)
2) Broad, interpretive power
3) Highly visible, prominent position, form of recognition that brings respect
4) Scholars
5) Appointed or elected as crowning achievement (usually late in career)
6) Influential in shaping the system
C. Scholars: Civil Law
1) Heroes of the civil tradition (revival and development of jus commune due to scholars; Glossators and Commentators)
2) Codes drafted in 19th century based on writings of scholars
3) Both Justinian and Napoleon feared the influence of scholars
4) Civil law is a law of professors
5) Revolution dominated by rationalism, work of scholars
6) Teacher/scholar is still real protagonist of the civil law tradition
D. Scholars: Common Law
1) Don’t have direct influence or power (influence of common law was a compilation of cases decided by judges, not based on the work of legal scholars)
2) “Secondary sources”; mostly through legal education and restatements
3) Judges more influential in shaping system (common law not university driven law
Focusing Question #3
I. ... Civil Law Tradition
1) Length
a. ... Only cited law
d. ... More like decision of court
3) Sources of Law
a. ... Legislature is source of law
4) Styles of Reasoning
a. ... Idea of law is body of abstract perfection
B. Common Law Tradition
1) Length
a. ... Power to overrule legislature in terms of constitutional rights
3) Sources of Law
a. Stare decisis (judge made law, precedent)
b. ... Law can be made by judges entirely separate from statutes
4) Styles of Reasoning
a. ... Backward Looking; Turtle: burden gets heavier as law grows
d. ... Stretch law to build the case
g. ... Civil Law separates (historically public law didn’t get weight of treatment)
c. Common law does not differentiate
2) Law v. ... Civil law does not separate (infused within the code)
b. Common law separates the two; the distinction doesn’t exist anymore in terms of courts in common law; however, if jury trial desired, must be issue of law; do not get jury if issue is equity
3) Civil v. ... Civil law separates
b. Common law does not
Focusing Question #4
I. ... Administer justice
2) William the Conqueror sought to consolidate his kingdom after the battle of Hastings in 1066, divvyed up land to Barons and others who supported him
3) Land vitally crucial to King’s control during this period, was susceptible to controversies and struggles that could have destabilizing effects on the King’s capacity to retain control
4) King looked to resolve the disputes
5) King authorized and set aside a court that began to consolidate authority and start a common law of the land
6) Tying of mutual and reciprocal obligations through land
7) Jurisdiction of the courts developed along the lines of the King’s concerns
8) Royal courts represented ad hoc efforts to respond to felt necessities and eventually emerged as institutions
9) Slow and incremental process
10) Emergence of Royal Courts achieved centralized authority by offering better brand of justice to people so they will start leaving local courts and go to royal courts to settle disputes
B.
Approximate Word count = 7460
Approximate Pages = 29.8
(250 words per page double spaced)
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