Class Notes William Leblanc 40175768 Jan 21 Roman Law Recap from last week: 1. The Western legal tradition is found around the globe 2. The legal systems of European nations have been spread through different models of colonialism as well as other non-coercive forms of contact. 3. Being aware of the context/subject position of the historian helps in interpreting the history being told This week: Methodology: All histories have a “plot” - Historians take raw data and organize and arrange it The arrangement reveals a lot about the person doing the arrangement These histories are no different READING NOTWS: Ando’s Historical Self-Consciousness in the Roman Legal Tradition - Laws were passed and followed for hundreds of years but they were interpreted and those interpretations were interpreted. Mousourakis history - History is told as an almost natural progression, as development in history as a development in civilization Mousourakis important points: 1. Legal tradition beings with the way of making law 2. Codification of law but also the development of an apparatus to interpret and elaborate on the law 3. It changes over time and adapts to the social and political and economic conditions Important distinctions in Roman Society - Citizens and non-citizens (ius-gentium) Patricians and plebians Feb 11th Code Napoleon or Code Portalis Rousseau & Montesquieu Rousseau in ‘Social Contract’ 1762: - Man is born free, government chains man everywhere he goes. Government legitimacy is based on its compliance with the general will of the people Montesquieu ‘The Spirit of the Laws’ 1748: - Judges are no more than the mouth that pronounces the words of the law o Judges shouldn’t be creating laws Separation of powers is key for him France: 1789 Watershed moment - End of the ancient regime The declaration of the rights of man is approved by the national assembly o A solemn declaration the natural unalienable and sacred rights of man o Resembles Ten Commandments and Twelve Tables - o ‘Supreme being’ The king would not endorse the declaration Revolution continues but the declaration spreads through Europe Declaration of the Rights of Woman 1. A woman is born free and remains equal to man in rights. Social distinctions may be based only on common utility 2. Property belongs to both sexes 3. Political association is to preserve the natural and imprescriptible rights of woman and man Napoleon -wins key battles in the French Revolution - it is not until 1804 that he crowns himself emperor Portalis - Chief draftsmen of the Code Issues with the code: - Customs The Declaration states equality for everyone but, this did not happen in reality. Many privileged individuals 1 Magna Carta First declaration in history imposing the Rule of Law ‘swag’ - a legal icon - It is part of society every single day The Myth - The myth was that the Magna Carta had been written in Stone came about in the 18 th century. o US colonists complained about taxes imposed by the Crown - Massachussets seal with Magna Carta in one hand and a sword in another is adopted. - There were several versions of the Magna Carta. It was a document written against a despot - The principle is established that even the king is subjected to the law The Magna Carta was written for whom? Considering peasants didn’t read and only spoke English It was mostly concerned with feudal financial arrangements. What are the liberties, it protected? King John England’s Worst King - He lost almost all possessions in France A despot to Resist - When his first wife had no children, he sold her Placed higher taxes on his people He got his own people killed Baron rebelled in 1215, negotiated the Magna Carta o Is it the oldest Case of Law? Basque Fueros; 8th century to 12th century The term has been associated with privilege. The Fueros do not derive from a supreme authority but from the repeated practices of a community Hohfeld’s Rights: Opposites: IF A HAS: a claim THEN A LACKS a: no-claims IF A HAS: a privilege THEN A LACKS a: Duty Correlatives: IF A HAS: a claim THEN SOME PERSON B HAS: a duty Property cannot be taken - Article 28 Relationship with ius commune? Article 61 – Right to Lawful Rebellion Rules of Law – Article 29 Lord Coke – March 25th Lord Edward Coke – Self Appointed Father of the Rule of Law Background: Authority Religious Conflict & Recognition of Sovereign Power - - After Henry VIII and the English Reformation some changes facilitated a shift in authority from the king as a sovereign to the people as sovereign Part of reformation was a transfer of power to parliament to create laws on religious practice and doctrine & Henry VIII extended his reign to Wales as well as to Ireland which had been a papal possession Elizabeth eventually becomes Queen after Edward VI, when she became Queen, protestant doctrine held that sovereignty had to reside in the parliament and not in a female monarch Coke 1552-1634 - If the Magna Carta was the document that was forged the rule of law in English Law, then Coke as the champion of the MC & becomes the father of the rule of law He pushed the line that the king is ruled by the law Also, the parliament is ruled by the law In short, Coke uses the Magna Carta as proof of an agreement built on custom and consent of the king as the law of the land. It used to be GOD who created a king and that is where authority comes from Here, we have the law then, the king. An unclear image, Coke states it to be the rule of law of the judge that rules overall. Coke gets thrown into the London Tower for 7 months for saying; “The privileges of this House is the nurse and life of all our laws, the subject’s best inheritance. If my sovereign will not allow me my inheritance, I must fly to Magna Charta and entreat explanation of his Majesty. Magna Charta is called … the Charter of Liberty because it maketh freemen. When the King says he cannot allow our liberties of right, this strikes at the root. We serve here for thousands and tens of thousands” - The idea of Natural Law and Natural Rights coming together Natural Rights: ethics and law / comes close to the idea of Natural Law Coke & Hobbes Hobbes was obsessed with discrediting Coke Hobbes: “The obligation of subjects to the sovereign is understood to last as long, and no longer, than the power lasts, by which he is able to protect them.” The sovereign, Hobbes argued, cannot be subject to the civil laws, “for, having power to make, and repeal laws, he may when he pleases free himself from that subjection, by repealing those laws that trouble him, and making of new; and consequently he was free before.” “[I]t is an easy thing,” he wrote, “for men to be deceived, by the specious name of liberty; and … to mistake that for their private inheritance and birthright.” Hobbes hates Coke because he challenges the authority of the king Hobbes; people come into society and they give their liberty, whatever the king says is law is it. One way. - There is no inheritance or birthright about this Coke and Empire Vocab •Forensic history: history used to confirm a predetermined belief system •Anachronism: an act of attributing a custom, event, or object to a period to which it does not belong. "it is an anachronism to suppose that the official morality of the age was mere window dressing" •Constitution: “a national legal environment anterior to the positive law of kings, their courts, and legislatures” p444 •Canon: a collection of books considered sacred (it is dynamic) The Rights of Man (France) vs the Rights of Englishmen (England) Jurisdictional versus jurisprudential law Article distinguishes between the two: Jurisdictional is about the institutions (the courts, their circuits, the common law bar, and the Inns of Court) Jurisprudence is the rationally organized rules and principles defined in reference to each other - Rights of Man is meant to be for ‘everyone’ whereas, Rights of Englishmen is exclusive to many The Rights of Englishmen •King James –King is sovereign, there were kings before Parliaments •(Minute 24) what is the role of reason? Natural reason and artificial reason •Is science and reason •Natural Law Relies on Reason •Rights come from previous agreement and the institutions •How does law become independent? Law’s foundation is reason -> Law = Natural reason and Artificial reason The common law is nothing else than reason Natural Law Origins •Aristotle (384 BCE) there is just by nature (science) and just by law, and they are not the same •Gratian-- Canon law (middle 12th century) makes the link between what is natural law, just by nature, as the same as what is god’s law. •St. Thomas Aquinas (1225-1274) (from Italy had been a monk but was cast out by emperor who didn’t want so much authority of the Pope. ) •Studies at the University of Paris at the moment that Arabian-Aristotelian philosophy begins to take off. He teaches on Aristotle and gets into a kerfuffle about reason and science. •He creates a middle position in which reason is under god, and man’s work is to find the natural principles that are found in god’s creation. Natural Law is not the same as Natural Rights Natural law is ethical/scientific and suggests there is a natural order of things that is knowable from reason It can also imply a kind of natural hierarchy Consistent with natural law—slavery, serfdom, etc., There is overlap, however… as we will see: •During the Enlightenment, there was a renewed interest in teasing out the natural order of things that can be discovered through reason—to discover the universally valid principles governing nature, humanity, and society Petit Treason - Resembles a Gloss in format. o Instead of explaining what it means, it aims to show where authority is derived, justify itself Coke uses authorities to put the king in his place He references the Justinian Code by naming his Treatise ‘the institutes’ Petit Treason: is a lesser form of treason but, it is an individual’s betrayal of authority over them but not to the extent of the King. Ex; a woman who kills their husband is much worse than vice versa (during this time period). Coke is in between the old traditions but also a modern way of thinking. A proto-natural rights but not quite there...still carrying medieval characteristics. What else did Coke do? p.453-453 property and sovereignty p.482 imperial and integrative, provincial and disintegrative, liberating and enslaving April 1th Blackstone and the Rights in the English Tradition What are Rights? A Legal Historical Framework Sir Paul Vinogradoff on Rights-- Against Hohfeld’s conception Important legal historian at the end of the 18th century and beginning of the 20th. Russian/British and took over the position of Maitland Asserts the importance of the individual in rights claims against the social ”We might say in English: law is right taken objectively, from the point of view of society, right is the personal conviction of men as to what is due.” What is Right According to Vingradoff? It exists in a tension between what society recognizes, where social interests lie and what an individual (or group) claims 1. A right must be claimed, that is a subject must assert a claim - what is a claim for a right? - can someone make the claim on someone’s behalf How do we know what someone wants? 2. A declaration of right is the juridical stage in which a claim is justified from the public point of view 3.Enforcement, a right must be enforced Ihering has a social conception of right 1.Rights are the protection of interests 2.It is not about a claim made by an individual, but conflicts of interests of groups and classes on one side and society on the other Timing •John Locke gives us natural rights •George III comes to power and there is deep instability •Blackstone makes use of this concept in his work as he outlines the laws of England as he found them in 1765 •Jeremy Bentham criticizes Blackstone’s use of rights and argues instead for a very different view of law 1776 Declaration of Independence Sir William Blackstone Born July 10, 1723 in London and died in 1780 He had an unsuccessful practice, so took the degree of doctor of civil law and started teaching then went back to practice The Commentaries were written between 1765-69 The Commentaries •It is presented with a kind of simplicity, completeness and lucidity to the system of law that was new •As a student of math and science as well as law, he created what looked for the first time like a uniform logical system • This meant that he ignored many of the subtleties of the law, contradictions, archaic forms •He was not a scientific jurist in the sense that he did not pay close enough attention to detail and misunderstood some ideas in Roman law Video on Locke: - 4 Natural Rights. Need for Civil Society The reasoning for Locke is purely theological Bentham: Natural rights as nonsense upon stilts - Those 4 rights should not be considered natural, it should be judged through the utility to society From Natural Law to Social Law •“Law is presented by Blackstone not as a speculative abstraction or a collection of rules but as a functioning social system” –Posner • And how is law to be studied in the university? •[The] primary rules and fundamental principles should be weighed and compared with the precepts of the law of nature, and the practice of other countries; should be explained by reasons, illustrated by examples, and confirmed by undoubted authorities; their history should be deduced, their changes and revolutions observed, and it should be shown how far they are connected with, or have at any time been affected by, the civil transactions of the Richard Posner: One of the fathers of law and economics “The unifying theme in Posner's work is that economic notions such as price equilibrium and transaction costs can be applied to virtually all human choices, including sexual behavior.” ”The problem arises when Posner tries to use economic measurements, usually accompanied by algebraic formulae, to resolve dilemmas that are fundamentally ethical.” --Forbes, 1997 Jeremy Bentham •1748-1832 Student of Blackstone and huge critic of his former teacher •Jurist, economist and political theorist he is an early theorist of a basic version of utilitarianism •And he despised Blackstone: p.590 •He was supposed to be a defender of the status quo in the sense of upholding the common law and the interests judges have in the system Bentham’s Utilitarianism •Panopticon: Observe the most persons with the least amount of guards/resources •His criticism of Blackstone is his first text •The principle of utility: property in any object whereby it tends ot produce pleasure, good or happiness, or to prevent the happening of mischief, pain evil or unhappiness to the party whose interest is considered” - Make law to Maximize happiness •He called rights “nonsense upon stilts” Radical or Conservative? •Bentham charges him with defending the status quo •Blackstone claims” the king can do no wrong” to say his advisors’ bad advice should be checked, according to Posner •Blackstone uses Beccaria’s reform of criminal justice arguments to make the case for a “utilitarian” reforms p586-587 •Posner argues it is a kind of Common law incrementalism over “legislative revolution” •Is this the difference between radicalism and liberal approaches? Blackstone’s Theory of Rights Natural Rights – Society undermine therefore, need Positive Rights p.129 - Rights are the natural liberties or those social privileges given by society for giving up liberties - Shades of Hobbes & Locke His writing is part of a reformist agenda. Posner believes that Blackstone has social stability in mind unlike Bentham. Hohfeld - For there to be right there must be a duty o Privilege is not the same Privilege: having freedom from right/duty (no-right) - Nobody has freedom over you April 8th – 19th Century North America Cherokee Census 1835 ‘Census’ taken before the removal: - The description of land Names of families (possessions etc..) Purpose: - Profiling (population) Locating resources (gold) Very similar to little domedsay: - Which sought to exert power Census lead to: - Land grabs (forced to leave tribes) - forced to march to Oklahoma The Indian Act 1876 - To be Indian as a woman you had to marry within the tribe o Refusal to do this meant she would no longer be an Indian Why is it written like this? - To lead to the slow decrease in Indigenous population The Crown controls development (resources) - Structuring the relationship between the Cown and the Cree Christianity and Oaths - Telling the truth in court, swearing on Oaths, having to believe in God Using Christianity in the law, need all indigenous to be Christian in order to establish Rule of Law Similar to: The Law of Persons (Justinian Code) - Rearranges daily life What it means to be a person Part 2: Course Review All histories have a plot – Early classes we had - Raw data that is rearranged and says a lot about the person doing the rearranging We have looked at land and property, juridical relation in Hohfeld terms: rights & privileges Time and Legal History - We are looking at change and continuity over time and place Ando’s account is the way law is taken from one moment to the next, from one place to another (on Roman Law) - a trickle effect Continuity has to do with what keeps things together and vice versa 19th century as the age of Empires - The plot starts in 19th century in terms of the of empire and how European Law was being transmitted and it ends here in the 19th century European competition for resources around the globe Reception of law starts from Europe and spreads outwards (law is timeless) Law is a kind of technology - It enables social complexity, it builds and enables empires It has some path dependency It also includes some forms of contingency Like all other forms of technology, it is neither good nor bad in itself. It develops to create to destroy The history of the western legal tradition is a history of conquest Law becomes autonomous over time and transforms over time - The legal tradition begins with making law Codification of law but also the development if an apparatus to interpret and elaborate on the law It changes and adapts to the social, political and economic conditions Codification - Its part of a larger process, how a community structures themselves Common Law - Develops from former decisions that create precedence that evolve time It brings about change A particular class of individuals will see changes thanks to this Land and Property and Contracts - Private law, law of property, law of contracts and background norms that name people and name things Things that have created injustice that have lead to criminal affairs We have also discussed rights - First mentioned rights in Ancient Roman Codes Are they rights in the same sense? On Rights: The Hohfieldian Theory: - Rights are simply those legal relationships for which there is a corresponding obligation Ihering’s theory: - Protection of interests Conflict of interests, classes versus society Vingradoff’s theory: - A right must be claimed A declaration of right is the juridical stage in which a claim justified from the public point of view Enforcement a right must be enforced Justinian->magna carta->Coke The Ambivalence of The Western Legal Tradition - It has been the tool of conquest It has been the tool of unspeakable harms and in injustice o But also liberation and emancipation Principles of universalizability of norms It can be one tool to use against domination Audre Lord – What can we build with these tools? -
