Here, we start to study the sub-traditions of the civil law, as listed below. We will spend very substantial class time on the historical foundations of the sub-traditions. Simply put, law was not invented yesterday, it has been around for as long as more than two humans have tried to live together, and many apparently contemporary legal rules have very ancient origins. This process of discovery can be quite enlightening and even fun. However, I have warned that history and law are written by the powerful and they reflect the biases of the time. Thus, we will find sexism, racism, xenophobia, religious bigotry (especially anti-Semitic and anti-Muslim laws), and various other offensive trends in our study. For those who are interested in a different view of the world, I will occasionally post links to relevant web sites, such as:
You might also be interested in the following books, which are available in the Legal Information Center:
(1) Roman Civil Law
(2) Canon Law
(3) Commercial Law
(4) The Revolution
(5) Legal Science
(6) Modern Constitutionalism
There are many practical reasons to study Roman Law. Geographic expansion is one reason why Imperial Law made it into territory that is now covered by, importantly for our purposes, the Western European Nation-States that produce the Civil Law Tradition.
A. Roman Law
In studying Roman Law, keep in mind that we are talking about a legal system that evolved over a period of at least 11 centuries. The three most important periods, for purposes of our study, are the Republic, the Principate and the Dominate. Over time, these periods represent increased centralization of power in the hands of the Emperor and the diminishment of the authority of the legislative bodies, the Assemblies and the Senate. Correspondingly, the discretion allowed the Praetors and other magistrates below them in exercising the power of Imperium first increases, as power is being taken away from the legislative bodies, and then decreases as the emperors consolidate their absolute authority.
1. Introduction: 213-227
General Classifications
(1) Statutes
(2) Edicts by Magistrates
(3) Interpretatio by Jurists
Distinguish:
Magistrate
Roman Governmental Official With Legislative, Judicial And Executive Power, i.e., Imperium.Iudex
Lay persons who resolved questions of law and fact in individual disputes2. Sources of Law, A Roman law case, 227-238, 242-244
Laws of the Roman People
1) Acts
Statutes, Leges2) Plebeian Statutes
Plebiscites3) Resolutions Of The Senate
Senatusconsulta4) Imperial Enactments
Constitutiones Principis
Edicts, Decrees, Letters
Edicta or Mandata, Decreta, Rescripta5) Praetorian Edicts (or of those authorized to issue them)
Jus Praetorium, Jus Honorarium6) Answers Given By Jurists
Juristic Statements, Juris ConsultiCaecina's Case (69 b.c.), CB-242-244
It is important to note the description of Roman Legal sources and their binding authority, which Cicero describes as the "Levels" of law, made at the bottom of page 243 and in page 244:
1) "The first and highest level is the ius civile itself."
2) "Jurists constitute the second level of law, intermediate between the incorruptible ius civile and the judicial system."
3) "The third and most fallible level of law comprises the courts themselves. Cicero asserted that iudices must decide in accord with juristic responsa that correctly declare the law; to this extent the ius civile binds the courts. Naturally, this does not mean unchallenged domination by jurist; judges may also determine that a jurist's opinion incorrectly states the law, or they may choose between conflicting juristic opinions."
3. Family Law: Patria Potestas:, 238-242, 255-265
TABLE IV [OF THE TWELVE TABLES] (CB-238)
Law I:
A father shall have the right of life and death over his son born in lawful marriage, and shall also have the power to render him independent, after he has been sold three times.
Law II:
If a father sells his son three times, the latter shall be free from paternal authority.
TABLE IV
Law III
A father shall immediately put to death a son recently born, who is a monster, or has a form different from that of members of the human race.
Law IV
When a woman brings forth a son within the next ten months after the death of her husband, he shall be born in lawful marriage, and shall be the legal heir of his estate.
THE INSTITUTES OF JUSTINIAN (CB-255)
1.9 Family Authority
The people within our authority are our children, the offspring of a Roman law marriage.
1. Marriage, or matrimony, is the union of a man and a woman, committing them to a single path through life.
2. Our authority over our children is a right which only Roman citizens have. Nobody else has such extreme control over children.
4. Sources of law, Tort, Inheritance, 245-255
Note that the Lex Aquila is considered an historical antecedent of much modern criminal and tort law.
In the inheritance area, note that the cause of action for undutiful will is the origin of the idea of Forced Heirship, which is still the prevalent rule in the civil law world.
2.18 IRRESPONSIBLE WILLS [From the Institutes of Justinian] (CB-251-252)
Heads of families often disinherit or omit their children without good reason. Those aggrieved at being unfairly cut out or passed over are allowed the complaint of an irresponsible will. *** in making an otherwise valid will he failed to keep his mind on his family responsibilities. The will of someone really insane is of course a nullity.
6. The bar to a complaint for irresponsibility is receipt of your quarter entitlement. It can come to you as heir, legatee, beneficiary under a trust, donee in contemplation of death, or--though here only ***--as donee inter vivos, or in any other way specified in imperial pronouncements.
7. Our references to the quarter share are to be taken in this way: whether there is one person in the category allowed to make the complaint of irresponsibility or more than one, it is enough to give a single quarter for proportionate division between them. That works out at one quarter of the intestate entitlement for each claimant.
Forced Heirship: the legal limitation of testamentary capacity, i.e., you cannot write a will leaving all your money to the cat.
Compulsory Share or Legitim: the minimum share that must go to the legitimate heirs.
Free Disposition Share: the part of the estate property that may be disposed of without limitation.
In our system, this is comparable to the spousal and the heirs' share in intestate succession. But, we generally have wide freedom of testation. The civil law system also places limitations upon inter vivos gifts, so that the testamentary limitations are not avoided by giving the property away prior to death.
In my Seminar on Civil Code Institutions, I discuss contemporary Civil Code forced heirship as follows:
VI. Inter-vivos gifts of real property (donación inter vivos, donation entre vifs, Schenkung unter Lebenden) and the open notarial will (testamento, testament) will illustrate the civilian tradition of forced-heirship
A. Donations
- Introduction: Inter-vivos gifts of property. (donaciones, in Spanish, donations in French.) It is a "liberal act through which one person freely disposes of a thing in favor of another who accepts it."[5] For these to be valid, they must appear in a public notarial document.[6] The most important limitation on these is that a person may not receive by gift more than they would be entitled to by inheritance.[7]
- Inheritance Under Roman Law: Merryman & Clark, pp. 251-253.
- The concept of a liberal gift: Aubry & Rau, pp. 3-10 (§ 644 only)
- Donations generally: Aubry & Rau, pp. 17-19 (§ 646 only); Planiol, pp. 209-219 (¶ 2511); pp. 232-233.
- Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.
B. Forced Heirship
- Introduction: The most important limitation on testamentary disposition are the forced-heirship rules that require the testator to leave most of the inheritance to his legal heirs,[8] and leaves only a small proportion of the inheritance, usually one third, for free disposition, i.e., to be left to whomever the testator wants, regardless of legal heirship, e.g., you can will your Bentley to your cat.[9] The only way to avoid forced heirship is to disinherit the legal heirs, which is very hard to do.[10]
- Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.
C. The Open Notarial Will
- Introduction: The different types of wills. Non-holographic wills. Holographic (ológrafo in Spanish, olographe in French) wills are those that are written by the hand of the testator.[11] Non-holographic wills can be divided into open (abierto in Spanish, par acte public in French) or closed (cerrado in Spanish, mystique in French). Open wills must be prepared and certified by the notary and signed by the testator and witnesses (generally three, but the French code requires only two witnesses in addition to the notary or two subscribing notaries); the notary certifies the testator's capacity to subscribe the will.[12] A closed will may be prepared by the testator or by someone else at his request.[13] For it to be effective, the closed will must be placed in a sealed container that must be broken in order to extract the document. It must then be presented before a notary for preparation of a notarial document attesting to the existence of the will. During this act, in the presence of the notary and witnesses (generally five, but the French code requires only two and the Mexican code only three), the testator must state that the document is his last will and testament, the notary prepares the document describing the appearance of the sealed container. The testator, witnesses and the notary must sign the notarial document and certify the testator's testamentary capacity.[14] Concept (Introductory Materials)
- Materials: Planiol, pp. 314-315; 325-330
- Code Articles cited in the Introduction above, found at the end of the materials on Donations, Forced Heirship and Wills.
Footnotes:
5. C. Civ. P.R. art. 558 (translation mine). See also C. Civ. Esp. art. 618.
6. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 1327, C. Civ. Mex. art. 185
7. C. Civ. Fran. art. 931, C. Civ. P.R. art. 1273, C. Civ. Esp. art. 636, C. Civ. Mex. art. 185. See also the discussion of forced heirship supra.
8. In the Spanish and Latin American system, the part of the inheritance that must be left to the legal heirs is called the legítima (legitimate) in Spanish. C. Civ. Esp. art. 806, C. Civ. P.R. art. 735. It is divided into the legítima estricta, usually one third of the inheritance, which must be divided equally among all heirs and the mejora, usually one third of the inheritance, which the testator may use to "improve" one or more heirs, at the expense of the others. C. Civ. Esp. art. 823, C. Civ. P.R. art. 751. The French also have a mandatory "reserve" for heirs that must be followed in testamentary disposition; the reserve starts at one half of the inheritance when there is only one heir, and increases with the number of heirs, to 2/3 if there are two, 3/4 if there are three or more. C. Civ. Fran. arts. 913-914, see also Jean-Luc Aubert, Introduction au Droit 268-269 (1992). The Mexican Civil code has adopted a liberal social approach and eliminated forced heirship. See C. Civ. Mex. Motivos 25-27.
9. In France, whatever is left after the applicable reserve is called the quotité disponible, which may be freely disposed of by will. Jean-Luc Aubert, Introduction au Droit 269 (5th ed. 1992). A similar common law rule might be the imposition of limits charitable bequests.
10. Heirs are entitled to the legítima or reserve. C. Civ. Esp. art. 813, C. Civ. P.R. art. 741. Disinheriting. C. Civ. Esp. arts. 848-857, Civ. P.R. arts. 773-781.
11. C. Civ. Fran. art. 970 (Dalloz 1994), C. Civ. P.R. art. 627 (Equity 1984, supp. 1993), C. Civ. Esp. art. 688 (Civitas 1991), C. Civ. Mex. art. 1550 (Porrúa 1991).
12. C. Civ. Fran. art. 971-975, C. Civ. P.R. art. 644-655, C. Civ. Esp. art. 694-705, C. Civ. Mex. art. 1511-1520.
13. C. Civ. Fran. art. 976, C. Civ. P.R. art. 656, C. Civ. Esp. art. 706, C. Civ. Mex. art. 1521.
14. C. Civ. Fran. arts. 976-680, C. Civ. P.R. arts. 657-665, C. Civ. Esp. arts. 707-715, C. Civ. Mex. arts. 1522-1526.
B. Transition between Roman and Customary Law, 265-281
Map from Hyperhistory
As you see in the maps above, the Western Empire is displaced by the Germanic Tribes invading from the North, finding a Western empire that could not stop them.
I am not a big fan of the term "barbarian" or of the designation of this period as the "dark ages." However, Roman Law survives during this period because the idea of State Positivism, i.e., that the sovereign state has the authority to impose law within its territory, accompanied by the power to actually impose it on people, which was arguably present at the height of the Western Roman Empire, will not really widely return to Western Europe until the birth of the Nation States of the late Eighteenth and early Nineteenth centuries. What we have is the co-existence of laws and even legal systems based on important factors that I divided into:
1) The Personality Principle: the law to be applied to a person is that of his "race", therefore, Romans had Roman Law applied to them, and Visigoths had their own law applied to them, with the Goths having a decided advantage in conflicts between the classes. The invading tribes bring with them a system of customary law, which was decidedly local.
2) Roman Law was not "barbaric." I use this phrase in a very particular context. Compared to trial by combat or by ordeal, Roman procedure looks positively enlightened and ultramodern.
3) Political Factors: the fight between the Secular rulers and the Catholic Church for political power was based on the common ground of Roman Law.
4) Practical Factors: Roman law was written and generally available. Administratively, it was a good system that many rulers adopted, even if they could not enforce it beyond their castle walls.
C. Roman Law Makes A Comeback, 281-294
Keep in mind that most study of Roman law today is based on Justinian's Corpus Juris Civilis, produced in the Eastern Roman Empire, i.e., the Byzantine empire --a Roman empire that no longer included Rome, which had fallen when Romulus Augustulus was Western Emperor in 476 a.d.
Corpus Juris Civilis:
Compilation of Justinian's Digesta, Codex and Institutiones, supplemented by the Novellae.
1) Codex: there are two: 529, 534 a.d., compilation of laws from prior codes and constitutions, eliminating repetition and obsolete rules;
2) Digest: mostly opinions of jurists that had been issued as responsa;
Corpus Juris Civilis:
3) Institutes: a basic lawbook intended for educational purposes, succinct statement of the new law;
4) Novellae: special statutes, decisions or instructions issued by the Emperor after the code. From the Imperial Constitutions.
I emphasized in this area the legal development of the study of law. First, the amazing story of the small city-state of Bologna attracting so many students, given (or perhaps because of) its location between the big-boys of Northern Italy, Genoa and Florence in the West and Venice to the East. The evolution of the studies is important. Glossators, give way to the Post-Glossators, also known as commentators, who then give way to the Humanists. Glossators represent a literal look at the old Roman texts with marginal notes for explanation and cross-reference. The Commentators try to make law more practical and relevant to their times, by reorganizing it and incorporating some customary rules, within the Roman structure. The Humanists finally bring a critical philosophical view to the law.
D. Canon Law:
Canon Law, the law of the Roman Catholic Church, has had a profound influence on the Western legal tradition. It's basic principles are reflected in much European and American Family Law in particular. But it is certainly not limited to that. The substantive areas of law discussed in the initial readings are very important. Trace them as the origin or at least as a refinement of an older rule that is still around. Canonical Procedure has had a profound influence on the Civil and Criminal procedure of the Civil Law Tradition, as we will see later. Cross-reference this material carefully.
Pope Alexander Pardons Fredric I (Barbarossa)
Abelard & Heloise
Northern Italy in Late Middle Ages
1. History and Development, 294-308
Note the parallels between Decretists and Glossators, Decretalists and Post-Glossators and Catholic Natural Law Philosophers and the Legal Humanists.
| Roman Law Study | Canon Law Study | Function |
| Glossator | Decretist | Literal, Duplication, Annotation, cross-referencing |
| Post-Glossators or Commentators | Decretalists | Practical, Relevant, Still Roman in form, if not completely in content |
| Humanists | Natural Law Philosophers | Critical View of the Law |
THREE PERIODS OF CANON LAW:
1) Gratian's Decretum (1139-1150);
2) The Council of Trent (1545-63);
3) The First Vatican Council (1869-70, Code of 1917).
HIERARCHY OF CANON LAW:
1) DIVINE LAW, the will of God, reflected in the Bible's revelation. Superior.
2) NATURAL LAW, also God's will, but discerned from human reason, conscience and revelation. Superior to human law.
3) HUMAN LAW.
OLD RULE:
Roman and German. A good emperor should observe his own laws as a moral imperative, but was not obliged to do so.
NEW RULE:
Princes are bound by their laws. They can, as lawmakers, change them, but not disregard them.
ECCLESIASTICAL JURISDICTION
Based on a Person's status or identity: Ratione Personarum:
1) Clergy and members of their household
2) Students
3) Crusaders
4) Wretched persons, poor people, widows and orphans
5) Jews, in cases against Christians
6) Travelers, including merchants and sailors, when necessary for their safety.
Based on the Subject Matter: Ratione Materiae
1) Administration Of The Sacraments;
2) Testaments;
3) Benefices, Administration and Patronage of Church Office, Tithe (Limosna);
4) Oaths, Including Pledges Of Faith;
5) Sins Meriting Ecclesiastical Censure.
A NOTE ABOUT THE BIASES IN 12th CENTURY CANON LAW
In the area of Canonical Procedure, we saw some disturbing examples of classism, sexism, racism and anti-Semitic and anti-Moslem rules of valuation of testimonial evidence. I did emphasize however, how, by the standards of the day, it represented some progress, but still, clearly horrible stuff. Law is a conservative force, and often, a tool for the powerful elites. Naturally, it will reflect the biases of those particular elites. Therefore, the testimony of Jews counted half that of a Christian and that of Moslems was not counted at all. The different treatments of the two non-christian religions, while clearly biggeted, also reflect the level of direct conflict between the groups and, probably, issues of race. Let me explain.
The Moors in Spain were the Moslem Ummyyads (also spelled Ommyyads or Omayyads). The Ummyyads ruled Islam after the Prophet Mohammed's successors, the four Caliphs of Medina. The Prophet Mohammed was born in Mecca, in today's Saudi Arabia, in 570, a.d. When he was 40, the Archangel Gabriel told him to go and preach a new Gospel. His teachings were not initially well-received by the people of Mecca, and he was forced to flee to Medina in the early 7th Century. There, he became Supreme Judge and Prophet, and he came back and conquered Mecca in 630. He died in 632 in Medina. He was succeeded by four Caliphs (successors of the prophet) who ruled from Medina. There was a dispute about the succession of the third Caliph and the fourth was assassinated in 661. The Ummyyads then begin to rule Islam and eventually move their capital to Damascus, now the capital of Syria. The group was displaced from Damascus in 749 by the Abbassids, the descendants of Abbas, an uncle of the Prophet Mohammed. The Abbassids moved their capital to Baghdad. The Ummyyads went through North Africa to the Iberian Peninsula and established the Emirate of Cordoba in what is today Southern Spain. In 929, the Emir declared himself a Caliph, thus challenging the Abbassid Caliphate. This also reflected the growing power of the Ummyyads, who, by the 10th Century, had turned their capital of Cordoba into the largest city in Europe. Cordoba was also an incredibly important scientific and cultural center. Therefore, the Moslems were directly challenging and threatening the Christian powers of Europe, including the Church, from the West. From the East, direct conflict between Moslems and Christians begins with the First Crusade (1096-99). The Crusades go on well into the 13th Century (the Eighth Crusade ended in 1272). The Ummyyads were finally expelled from Spain by the Catholic Kings, Ferdinand and Isabella, after the taking of Granada in 1492. Thus, Moslems were the "have nots," i.e., the "heathens" of Canonical law.
Map from Hyperhistory
2. The Code of Canon Law, A Canon Law case, 308-316
In this section, I wanted you to see the administrative organization of the Church and the development of the Codes of Canon law.
In the case, I want you to identify the hierarchy of legal sources, which is very similar to that showed in Caecina's case discussed above: (1) The Code, (2) Commentators, (3) Cases (often as reported by commentators).
You should know that the Code deems the children of annulled marriages to be legitimate children, because they were born in the so-called putative marriage.
COVENANT (Can. 1055)
... man and woman establish between themselves a partnership of the whole of life, is by its nature ordered toward the good of the spouses and the procreation and education of offspring; ...
VALID MARRIAGE (Can. 1061)
... the parties have performed between themselves in a human manner the conju-gal act which is per se suitable for the gen-eration of children, to which marriage is ordered by its very nature and by which spouses become one flesh ...
MUST KNOW (Can. 1096)
... marriage is a permanent consortium be-tween man and woman which is ordered toward the procreation of offspring by means of some sexual coopera-tion.
E. The Reception of the Jus Commune in Europe
By the reception we mean the process of "localization" of European law, which is primarily driven by the incorporation of Roman and Canon law into the local legal order. Eventually, law will become a national, sovereign prerogative. But this is a relatively recent development.
In class, I highlighted the legal process and how recognizable it is to us today. This is precisely the point, even in medieval or Renaissance legal systems, we can identify institutions and methodology that are perfectly familiar to the contemporary law student.
1. Italy, France and Germany, 325-339
It is important to note the influence of judicial opinions as a source of law during this period. Note the power of the French Parlements as sources of law as well. In the future, we will learn that, at least officially, we go back to Roman hierarchy (see Caecina's case).
Legal Sources: Binding
1) Roman texts (force of law), statutes and legal customs.
2) Judicial Precedents of the Supreme Court. Note 10: Stare decisis vs. judicial custom. [328].
Legal Sources: Persuasive
3) Judicial precedent from other Supreme Courts, including the Rota Romana, the Papal supreme court.
4) Jurists, doctores, in their legal writings. (a) Glossae, commetaries and treatises; (b) consilia, i.e., legal advice; (c) Alleationes, briefs published in volumes.
2. Spain, Portugal, etc., 340-350
In class I pointed out that Seville was captured by Christian Spanish rulers on November 23, 1248 (by Ferdinand III, after a siege that began in July of 1247), which explains why Alfonso X was able to open a University there in 1254. However, the most influential doctors who drafted the Partidas came from Salamanca, a city northwest of Toledo and Madrid. Salamanca was within the kingdom of Leon. Nevertheless, Seville was a Moslem center of science and culture long before being re-taken by the Christians rulers.
The Partidas are a very complete code. They adopt the Roman vision of a father's power over children, and continue their legal treatment, which is comparable to that of chattel. Hence, the following Partida excerpts.
King Alfonso X
Authority, Which Fathers Have Over Their Children
Fathers have power and authority over their children, both according to natural reason and according to law. First, because they are born of them; second, because they are to inherit their property. Wherefore, since in the preceding title we treated of legitimate children, and of all others of every description whatsoever, we intend to speak here of the authority which fathers have over them. We shall show what authority is; and in how many ways this word can be understood; how it should be established; and what force it has.
LAW I
What the Authority Is Which a Father Has Over His Children
Patria potestas, in Latin, means, in Castilian, the authority which a father has over his children. This authority is a right which those especially enjoy who live under, and are judged by, the ancient laws and regulations made by philosophers, by the command and with the permission of the emperors; and they possess this authority over their children and grandchildren, and all others descended from them in the direct line who are born in lawful wedlock.
Property [of] Children Obtain
First, such as children earn by means of the property of their fathers, and gain of this kind is called in Latin profectitium peculium; for, although it is obtained in this way or on account of their fathers, it all belongs to their fathers who have control of it. Second, where anyone's child earns something by the labor of its hands, by means of some trade or through any other knowledge which it may possess, or in any other manner; or it acquires a gift left to it by will, or through inheritance from its mother, or from some of its relatives, or by any other means;
Castra is a Latin word which is understood in three senses. The first and most common is every castle and stronghold surrounded by walls or other fortifications. The second is an army or fortified camp where many persons are assembled, and which is protected by defenses, and, for this reason is called, in Latin, castra. The third is the Court of the King, or of some other prince, where many persons are assembled, as around a lord who is a fortress and the bulwark of justice. Wherefore, the profits which men obtain in any of said places derive their name from this Latin word castra, and, for this reason, they are called castrense vel quasi castrense peculium. And also, since men obtain profits of this kind through great hardship and danger, and because this is done in such noble places, they become absolutely the property of those who claim them, and enjoy greater exemptions than profits of other kinds; for owners of property of this description can dispose of it as they wish, and neither a father, nor a brother, nor any other relative that they may have has any right to it, or can interfere with it in any way....
LAW VIII
For What Reasons a Father Can Sell or Pledge His Child
Where a father complains of great hunger, and is so poor that he cannot have recourse to anything else, he can then sell, or pledge his children in order to have something to buy food with. The reason why he can do this is the following, namely; since neither the father nor his child has any other means to escape death, it is proper that he should sell the latter, and make use of the price, so that neither of them may die. There is another reason for which the father can do this, for, according to the loyal fuero of Spain, where a father is besieged in a castle, which he holds of his lord, and is so afflicted with hunger that he has nothing else to eat, he can eat his son without incurring reproach, rather than surrender the castle without the order of his lord. Wherefore, if he can do such a thing for his lord, it is but proper that he should be able to do it for himself. This is another right growing out of the authority which a father possesses over his sons who are under his control, which a mother does not have. This, however, can only be done in such a case where it is publicly understood that the father has no other means to avoid death, if he does not sell or pledge his son.
LAW IX
How a Son Who Is Sold by His Father Can Be Redeemed and Restored to Liberty
When a father sells his son through stress of hunger, as stated in the preceding law, and he himself pays for him the price for which he was sold, or someone else does this for him, the son should be restored to freedom. But if the party, after he purchased him, should teach him some trade or science, on account of which he would be worth more than at the time when he bought him, he will not be required to surrender him for merely the price which he paid for him, but he should be given, in addition to said price, as much as reliable and intelligent men truly estimate that his value has been increased on account of what the party had afterwards taught him, or had expended out of his own property in order to have him taught.
