The Evolution of “Western” Law
Dr. Brian Levin-Stankevich
Chancellor and Professor of History
University of Wisconsin – Eau Claire
• Introduction
• Why am I interested in the history of law?
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Dissertation
Anatolii Fedorovich Koni
Library of Congress
“Decisions of the Cassation Courts on……”
Why?
• Henry Maine
Maine
(Existing theories of jurisprudence) take no account of
what law has actually been at epochs remote from the
particular period at which they made their
appearance… The mistake.. Is therefore analogous to
the error of one who, in investigating the laws of the
material universe, should commence by contemplating
the existing physical world as a whole, instead of
beginning with the particles which are its simplest
ingredients.
The “Particles” of Law
Substance
Normative
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Laws
Statutes
Decrees
Constitutions
Civil and Criminal Codes
Administrative Law
Public Law
Commercial Law
Judicial System
Courts
Lawyers
Trials
Judges
Precedent
Legal System
Legal Order
Chronological Plan for Speech
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Greek and Roman Law
Tribal Law
Canon Law (Roman Catholic Ecclesiastical Law)
Royal Law
Common Law
Civil Law
Themes to Understand
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Sources of Law
Jurisdictions – who and what is included
Governance and Law
Process
Philosophy and Jurisprudence
TRANSITIONS
Idea of Law
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Justice
“Right Order”
Divine Will
Peace
Conflict Resolution
Predictability
– Contract
– Property
• Rights
• Obligations
Image of Law and Justice
• Moses (Rembrandt)
• Law as Written
Command
Primitive Law
• Characteristics of primitive law
– Oral
– Simple, informal procedure, no privileged roles
but elders
– No complex institutions
– No contracts
– Property communal use
– Dependencies led to mutual obligations = feudal
– No clear evolution, change very gradual
Ancient Greece
• Mycenaean Civilization 1600-1100 BCE
• Ca. 1100 Dorian invasions
• 800 – 300 Greek Civilization
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Polis (poleis); connected to soil; independent
Small, manageable
Pericles (490-429 BCE)
Peloponnesian Wars (431-404 BCE)
• Macedonian Conquests (Philip, Alexander)
4th Century BCE
• Greek Law
– Draco’s Laws (ca. 620 BCE) – death penalties
– Solon (ca. 570 BCE)
• Both to resolve class conflict, land distribution
– Themis – goddess of justice, “natural law,” the right
order of things, an Oracle at Delphi
– Dike – daughter of goddess of justice
– Psephismata – rulings (compare to Roman edicts)
– Nomos – formal laws, statutes
Definitions
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Anthropomorphic
Casuistic
Deductive (Plato)
Inductive (Aristotle)
Dialectic
– Refutation of an opponent’s thesis through questions that
identify contradictions
– Deriving a generalization from a series of propositions
– Definition of concepts by drawing narrower and narrower
distinctions and synthesis of components into a whole
Greek Influence on Law
• Practical or theoretical?
– Dialectical method: classification and conflict
– Meaning of words and intention
• $25 crime in FL
• 2nd Amendment
• Intent of the legislator
• Direct or indirect?
– Codes, Stoic influence
• Code influence on Twelve Tables
Rome
• Origins – Romulus (753 BCE)
– Rome of the Kings (753-509)
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Republic (509-31 BCE)
Empire (31 BCE – 476 CE)
Christianization – Constantine, 313 Edict of Milan
Invasions – 4th and 5th C, Germanic rulers
Byzantium – lasted until 1453
Sources of Law
• Twelve Tables
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Grounds for divorce
Agency in procedure
Guardianship
Contract (stipulatio, oath, formalistic)
• Statutes
– Comitia centuriata, tributa, concilium plebis (Lex Hortensia, 287 BCE)
– Role of magistrate to propose, assembly to accept or reject, no
amendment
• Edicts of Praetors – Annually elected, statements of how he will
apply law, special pleadings allowed or defenses disallowed. Some sense of
stare decisis. Urban, Peregrine, Curule (markets)
• Interpretation of Statutes –
– College of pontiffs (religious leaders) –
• Sale of son 3 times, sale of daughter
once = free from patria potestas
– Law books by jurists – Scaevola, 95 BCE
– Senatus consulta – praetor’s edicts began to be
enforced as law in Empire
– Imperial constitutions, orders, judgments, opinions
on law – all issued by virtue of imperium
• No recognized role for Custom
Q. Mucius Scaevola
• Classified civil law into (dialectic)
– Law of inheritance
• Testaments; intestate succession
– Law of persons
• Marriage; guardianship; free status; paternal power
– Law of things
• Possession; non-possession
– Law of obligations
• Contracts; delicts
Sources of Roman Law
– Gaius Institutes – 160 CE
– Jurist writings (Ulpian, Paul, Papinian,
Modestinus, and Gaius)
– Law of Citations, Theodosius, 426 CE, jurists
legitimized
– Corpus Iuris Civilis
• Justinian’s Code, Digest (Pandects) and
Institutes -529-533 CE
– How to know the law in effect
• Justinian’s Novels (later legislation)
Family Law
• Marriage:
• cum manu = status of daughter
• Religious ceremony
• “purchase,” a form of mancipatio
• “usus,” co-habitation, 1 year, not 3 nights apart
(abolished in early Empire)
• Sine manu = civil marriage became common
• Divorce –
• Early Rome - for adultery, tampering with keys,
poisoning a child, male only
• Later - liberalized, few penalties for any reason,
even after Constantine
• Patria Potestas –
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complete power over person and property
Subordinated by birth, marriage, adoption
Personal “allowance” = peculium
Adoption: 3 sales, given back, property claimed
by adopter, recognized by praetor.
– Emancipation – 3 sales, then purchaser or seller
“manumitted” son (as for a slave)
Property
• Distinctions
– Public (res publicae) or private (res privatae)
– Corporeal (tangible) or non-tangible
• Mancipatio
– Physical transfer or witnessed (tapping the scales,
ingot)
– Usucapio, possession for period of time (3 yrs.
Land)
– Protections against false claims, clear title
– Easements (stayed with land, not grantor)
– Usufruct (life tenancy)
• Loan security
– Fiducia – transfer of ownership to creditor,
allowed use by debtor, returned on payment.
Could not “re-finance.”
– Hypotheca – “mortgage,” gave a lien or claim to
creditor. Could be used for a second hypotheca.
Contract
• Individual contract types, no general theory
– Verbal; real; literal; consensual
• Stipulatio (verbal): strict form, no allowance for fraud
or duress until 1st C. BCE.
– Verbal, use of same word (“I do”)
– Broadly used for all relationships, sales, surety
– The knight Canius (Cicero)
Contract
• Consensual:
– Sale – agreement, thing, price;
misrepresentation; seller’s disclosure
– Hire – little used, slave labor. Misrepresent skills.
Inability to finish work; damages. Exemption of
aristocratic “professions”
– Partnerships;
• Condictio: action against contract or agreement, for
return of money for non-performance or immorality
greater than the giver’s (prostitution exempted)
• Delicts and Tort Law – civil actions from
“crimes” – theft, violent robbery, property damage,
personal injury, negligence
• Quasi-delicts – tangential liability (ship captain
for crime on ship, property owner for action of
tenant)
• Noxal liability – liability of paterfamilias for
action of child, later responsibility for damage
caused by property or animals.
• Succession – movement from agnate (male only)
to cognate (blood lines)
Law in Greece and Rome
• Sources of Law (texts, literary, human,
divine, expression of, reference to)
• Philosophy of Law
• Equity
• Dispute resolution
• Communication of Law (written, verbal, tale)
Germanic Europe
• Fall of Rome
• Frankish Empire – Charlemagne
• Rise of Kingship and States
Tribal Law
• Legal cultures of the various tribes
– Local custom
• Roman “vulgar law”
• Lex Salica (496, Clovis)
– Convince disputants to submit to set outcome
– Values inherent (rape, murder, slander, family
responsibility)
– Eliminate private warfare
• Elements of ritual, stilted language,
formalism
• Ordeal (fire, water, morsel) – belief in
arbitrary fate
• Elders (witan) kept tribal peace through
judgements
• Extent of political rule still limited, little
“machinery” of governance
Impact of Christianity
• Made the local ruler (tribal gods) into a
potential king (universal god)
• Reinforced oath-taking, made clerical role
(Bodo)
• Gradual change toward greater equity in
judgments (gender, class)
• Introduced writing and written records
• Built on sense of community of believers,
large tribe
Integration
• Spiritual and secular little differentiated
• Clergy role in justice administration
• Restoration of “right relationships” over
recognition of “rights”
• Penitential orders – monastic, based on
“sin,” used to qualify actual crime and intent
• Christianity grafted onto tribal custom
Law of the Church
• Substantive – scripture, some Roman influences (vulgar Roman
law), regional folklaw, writings of “church fathers,” decretals of
kings and popes
• From populus christianus to the corporate church
– 10th C. Cluniac monasteries
– “Peace of God”
– Attack simony (lay power over appointments, sale of church
offices)
– Attack nicolaism (clergy marriages that tied them and clerical
office to local and clan politics, inheritance of office, sale of
office, elimination raised question of appointment authority)
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Tension between lay and papal authority
Leo IX (1049-1053) – asserted authority over bishops
1059 – right of cardinals to elect pope
Gregory VII – Investiture Controversy vs. Henry IV
(H.R.E.) 1075-77
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Enlisted scholars to support claims
“freedom of the church”
Manifesto on papal powers
Henry capitulates, papacy as political force
• Investiture Wars, Concordat of Worms, 1122
• Pope gained authority over all clergy, across
boundaries
• 11th-12th C. – inside church, a legal profession, legal
scholarship, sources of law
• Perhaps the first great marketing campaign in
modern times
• Gratian, 1140, Concordance of Discordant Canons
(built on prior compilations)
• Sources: Divine Law, Natural Law, Human Law
• Gratian: secular rulers subject to their own law; custom
subject to natural law;
• changeability of human sources of law = new idea
• Human laws subject to natural law. Natural law subject to
divine revelation. Pope the sole authority on divine
revelation.
• Church takes on corporate structure; councils as quasiparliaments; specialists; growth of professional
bureaucracy
• Prorogation: each legal system offers to settle disputes
from the other; source of conflict
Jurisdictions of Canon Law
• Marriage: a sacrament; contractual relationship – free will,
duress, limited divorce. Contract creates status (lifetime)
• Inheritance: Making the will deemed a religious act
(conversely, intestate also included). 1/3 chieftain, 1/3 heir,
1/3/ God’s gift. Church protected gifts to church. Feudal
opposition
• Property: corporate ownership; trusts; foundations
(corporations of goods)
• Contract: establishes moral obligation; economy demanded
expansion of contract law; usury still prohibited, but
“legitimate” interest permitted. Papacy as banker.
Definition
• Canon – law of synod, ecumenical council,
or bishop
Becket vs. Henry II
• Pope supported Norman Conquest (1067), but William I declared
secular authority over pope
• 1154, Henry II ascends English throne with help of papal supporters
• 1162 appoints Thomas Becket, Archbishop of Canterbury (was
already chancellor)
• 1164, Constitutions of Clarendon, secular authority restated, Becket
denounced Henry.
• 1170, Becket murdered
• Dispute over ecclesiastical jurisdictions, “writs of prohibition”
• Henry later renounced offending articles, 1172
• 1215, English church “freedom” repeated in Magna Carta
Law of the County and Manor
• Feudalism
– Economy and governance = local
– Villages, “hundreds,” counties
– Lordship units, land, benefice, vassalage to
benefactor
– No “imperial” administration, government
– Fealty relationships provided upward and
downward predictability, justice administration, tax
collection, military service
• 8th – 10th C. – stirrup, armor, knights, mounted warrior –
expensive to maintain. Reduced use of peasants as combatants
• Military service bound landowner and feudal law bound labor to
that land/manor
• “interest” in property by knight, became property “right”, service
became a money payment
• Contractual reciprocity
• Networks of homage and fealty, principal to liege lord (usually
king)
• Contract of homage/fealty cancelled by provocation, failure to
fulfill obligations
Feudal Justice
• Lord had right to hold court over his vassals or
over his tenants
• Lord presided, peers adjudged
• Appeal to court of lord’s lord
• “Litigation was second only to feuding and
warfare as a form of conflict favored by the
baronage.”
• Breach of faith = “felony” (Norman)
Manorial Law
• Feudal law – among propertied classes
• Manorial law – participatory, civil and
criminal. Labor shortages accrued to benefit
of “serfs.” Later peasant uprisings a form of
rejection of the feudal contractual
reciprocity.
Sacred and Secular
• Papacy – first “nation”; crossed borders; unified;
unified system of law
• Delimitation of ecclesiastical jurisdiction left
responsibility for all else in secular hands
• Continuous jostling over the boundary of sacred and
secular jurisdictions
• Both areas developed discrete “sources of law” and
discrete procedures
• Secular legal systems pluralistic (civil, criminal
mercantile, urban, county/manor, royal law) but
ecclesiastic unitary.
Law and Courts, 10th – 15th C
• Multiple jurisdictions within each imperium
– Custom (feudal, baronial, manorial)
– Mercantile (law merchant, Staple - reciprocity,
Admiralty- quick justice, port towns)
– Urban (granted by charters, guilds, peer judges,
oath communities, responsible for defense)
Royal Law
• Kingship defined by independence of church
(what’s left)
• Royal attributes (Berman, 408)
• “curia regis” – king’s household, nascent
bureaucracy, circumvented traditional nobility
–Parlement in France
• Royal administration over feudal privileges
• Limits on kingship
Common Law
• Henry II (1154-1216)
– “foreigner” kings, loyal judiciary, local
involvement
– Absentee kings, grew administration in stead
– 1166 Assizes of Clarendon, royal law over feudal
– Court of Common Pleas (1178), justices in eyre
– King’s Bench
• Magna Carta 1215
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Freedom of church
Due process
Proportional punishment
Justice quick and without regard to cost
Ratifying the common law
English Revolution
• Hundred Years War, 1338-1453
• Henry VII – king’s court (Star Chamber), JP’s
strengthened
• Henry VIII – 1529 – divorce, Church of England
• Parliament called when king needed money
• Charles I – religious intolerance
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1640 Grand Remonstrance, Oliver Cromwell
Royalists vs. Anti-royalists
1645 New Model Army
Charles killed, 1649 by “rump” Parliament
The English Revolution
• 1649- 1660 – Cromwell, Interregnum
– Religious dissent breaks up [holistic systems]
– Military dictatorship
• Charles II reinstated, supported by gentry
• 1685 – succession crisis, James II. Catholic
• 1688 – gentry call William of Orange, offered
kingship,
• Bill of Rights: succession, parliament, civil rights, act
of toleration
English Revolution
• Divine right transformed into constitutional
monarchy
• Anglican Church made official, others tolerated (but
with disabilities)
• Growth of the party system, Whigs and Tories
• Judges: from “at will” to “during good behavior”
• Royal courts abolished, common law courts made
superior
Legal Outcomes
• Precedent – decisions as comprising custom and
reasoning of professionals. Dictum or Holding.
Precedent. Later stare decisis
• Procedure:
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Independence of jury; tried facts and questions of law
Procedural rights of accused
Adversarial procedures (vs. accusatorial or inquisitional)
Rules of evidence – probability, scientific influence
Protestant Reformation
• Religious revolt against Catholic Church
• Secular revolt against Church “organization”
• 1648 Peace of Westphalia
– Sovereignty
– Secularization of ecclesiastic law
– Spiritualization of secular law
Protestant Affect on Legal Thinking
• Focus on individual and individual choices
• Concept of “sin” as cause for law and
punishment
• Law as reflecting the 10 Commandments
• Substituted “Two Kingdoms” for “Two
Swords”
• Further split secular from religious thinking
Renaissance and Reformation
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Theories on the “state”
Macchiavelli
Humanism
Social Contract (Thomas Hobbes, John
Locke)
• Scientific Revolution
• Enlightenment (Rousseau)
• Natural Law separated from scriptural belief
Transitions
• Secular society – natural law – “positive law”
• Codification of Law
– Prussia, 1794
– France, Code Civile 1815
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Historicist view – Montesquieu
Constitutions (English, American, French)
Separation of Powers
Rule of Law
Reception of Roman Law
• Study of Justinian’s Corpus Iuris Civilis
– changes in meaning and adaptations
– 1100-1250 Glossators – explanation of original
text
– 1250 – 1400 Commentators – commentaries on
elements of the texts (e.g. property, person)
Law and Rights
• Natural Law – dominant theory
– all are equal
– inequality, property, government result from
both materials needs and social nature of
humans and also from following divine revelation
• Law should conform to church scripture
• Natural law is reflected in custom
• Law as “found” not “made”
French vs. English law
French
• Written procedures
• Professional judges
• Interrogation under oath
• Laws systematic, taught in
universities
• Royal law was substantive
and procedural
English
• Oral proceedings
• Lay justices and jurors
• Inquisitional procedure
• Law practical, casuistic
• Royal law procedural
18th C. France
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Ancien Regime
360 “codes”
South = Roman/written, North = customary law
Distributive obligations = distributive rights
Grants and charters
• legal “person” attached to status or service
• hereditary or earned, all Catholics
• Estates
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Clergy
Nobility of the Sword
Nobility of the Robe
3rd Estate : Bourgeoisie
Declaration of Rights
of Man and Citizen
• Principles
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Equality and freedom for all “men”
Redefinition of Rights
Separation of Powers
Government accountable to laws
Freedom of religion
• Active vs. Passive Citizenship
– property ownership
• TITLE III. CONCERNING THE RIGHTS OF
PERSONS.
• The principal division of the law of persons
is this, that all men are either free or slaves.
• Freedom (from which is derived the
designation free) is the natural right enjoyed
by each one to do as he pleases, unless
prevented by force or by law.
Institutes of Justinian
1. Men are born and remain free and equal in
rights. Social distinctions may be based only
on common utility.
Declaration of Rights of Man and Citizen, 1789
The law is the expression of the general will. All
citizens have the right to take part, in person or by
their representatives, in its formation. It must be the
same for everyone whether it protects or penalizes.
All citizens being equal in its eyes are equally
admissible to all public dignities, offices, and
employments, according to their ability, and with no
other distinction than that of their virtues and
talents.
Declaration of Rights of Man and Citizen, 1789
Code Civil, 1804
The laws are executory throughout the whole
French territory, by virtue of the
promulgation thereof made by the first
consul.
They shall be executed in every part of the
republic, from the moment at which their
promulgation can have been known.
France, Civil Code, 1804
American War of Independence
• Law of the Colonies
• Declaration of Independence
– French and English ideas
• Federalist Papers
• Constitution of the U.S.
19th and 20th C
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Legal Imperialism
Napoleonic Wars – influence on Russia
Africa and the Americas
Abuses of the “Rule of Law”
– Form over substance
• Manipulation of U.S. Constitution
– Decisions by liberal and conservative supreme
courts
– States’ Rights and federal law
Further Lectures
• The Common Law of England and its
Adoption in America
• Judicial Decision-Making and the
Interpretation of Law in Common and Civil
Law systems
• Key Decisions in American Legal History
• U.S. Legal System