Fall 2007 Muniz-Fratecelli Foundations Summary
Table of Contents
Glendon, et al., Comparative legal traditions (3d edn), pp. 1-49 _________________________________ 2
Zweigert and Kötz, Introduction to comparative law (2d edn), pp. 32-47__________________________ 4
David, Major legal systems in the world today (3d edn), pp. 1-31 _______________________________ 5
Glenn - CHAPTER 1 – A Theory of Tradition? The Changing Presence of the Past ____________________ 8
Glenn - CHAPTER 2 – Between Traditions: Identity, Persuasion and Survival _______________________ 9
Merryman, The Civil Law tradition (3d edn), pp. 1-5 _________________________________________ 11
David, “Existe-t-il un droit occidental?” in K.H. Nadelmann, et al., XXth Century comparative and
Conflicts Law, pp. 56-64 _____________________________________________________________ 11
Glenn - CHAPTER 5 – A Civil Law Tradition: the Centrality of the Person _________________________ 13
Von Mehren and Gordley, The Civil Law system (2d edn), pp. 3-14 ______________________________ 15
Harold Berman, Law and Revolution, pp. 49-61, 120-32 ______________________________________ 16
Portalis, “Discours préliminaire prononcé lors de la présentation du projet de la Commission du
gouvernement” in Gordley and von Mehren, An introduction to the comparative study of private law,
pp. 50-52 _________________________________________________________________________ 18
Glenn - CHAPTER 7 – A Common Law Tradition: The Ethic of Adjudication _______________________ 19
Harold Berman, Law and Revolution II, pp. 270-302 _________________________________________ 22
Selections from Coke, Reports pp. 157-60, 264-83, 478-81 ____________________________________ 25
Gordley and von Mehren, The Transformation of English Legal Science pp. 234-246 _______________ 25
William Tetley – Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified) __________ 28
Reid, “The idea of mixed legal systems” 78 Tulane Law Review 5-27 ____________________________ 30
Glenn - CHAPTER 10 – Reconciling Legal Traditions: Sustainable Diversity in Law __________________ 32
Oquendo – Latin American Law __________________________________________________________ 35
Glenn - Chapter 3 – A Chthonic Legal Tradition _____________________________________________ 38
CML - Bulun Bulun, Milpurrurru v. R & T Textiles Pty Ltd. [1998] 1082 Federal Court of Australia _____ 42
Delgamuukw v. British Columbia, [1997] __________________________________________________ 42
Mabo v. Queensland __________________________________________________________________ 45
Islamic Law - M. Cherif Bassiouni, Gamal M. Badr ___________________________________________ 46
Review of Boyd Report _________________________________________________________________ 47
Ginnine Fried – The Collision of Church and State: A Primer to Beth Din Arbitration and the New York
Secular Courts _____________________________________________________________________ 50
Ernest Caparros ______________________________________________________________________ 52
Grewe – The Epochs of International Law __________________________________________________ 54
Fall 2007 Muniz-Fratecelli Foundations Summary
Tran systemic: Idea of a contextual approach, can’t cover everything or do away with systems altogether
- all countries of federalism are all inherently Tran systemic
- b/c we are operating in a federalist framework and b/c we are studying other legal systems, we are always
doing comparative work
Glendon, et al., Comparative legal traditions (3d edn), pp. 1-49
Comparative Law – disagreement within legal community as to what this actually is  Watson discuss how the
closest definition is that more than one discipline is held within the term Comparative Law: for example –
Comparative Nomoscopy, which is the description of systems of law, Comparative Nomothetics, which is the
analysis of the merits of the systems, and Comparative Nomogenetics, which is the study of the world’s legal
ideas and systems. (theory of J.H. Wigmore)
 What first element defines comparative legal scholarship? Relationship of one system with another,
distinguishes comparative law from arbitrary enterprise. Can’t just look at two systems independently b/c it
might never have been aware of each other’s existence (ex. Indian law vs. Inca law)
 Watson privileges historical relationships, but not exclusive of other relationships
 Also approach stages of development, problem of superimposing patterns on society. There are many pitfalls if
you think that every society has the same problems. How do you avoid supposition?
o Focus on particularities of each system. But context is also very important, and can entail keeping an eye
on the system as a whole, esp. when it comes to historical development. Will thus be making a move
from particular to the general. How is the general different from the universal?
 once we start moving away from law in the analysis of problems within societies (i.e. a house that is actually
owned and not rented, building materials, etc. architect liability, Hittite law – they killed the architect if the
house collapsed)
 no clear-cut line for relevancy b/w systems
 discipline of law gives us a way of categorizing human behaviour, even if it may be partially arbitrary * still need
a place to start even if the lines are provisional (accepted or adopted tentatively; conditional; probationary)
??? aim of article: to determine what , if anything, Comparative Law (CL) is or should be as an academic activity
worthy of pursuit in its own right and with its own proper boundaries
must first examine what CL is not:
1. just taking a course in a different jurisdictions law, i.e. French Contract Law,
2. an elementary account of various legal systems and their families, and
3. primarily a matter of drawing comparisons, be it branches of law or similar problems
Glendon suggests that CL is the study of the relationship of one legal system with another (look at Legal History), the
nature of law, and especially about the nature of legal development
- where there is no relationship b/w legal systems, there is no CL and any comparison drawn b/w rules is
arbitrary and of no systematic worth
 thus must establish the nature of possible relationships
o historical relationship: one system derives its rules or system from another; when one system exerts
influence on the other
o “inner relationship”: spiritual & physical relationship and on an undeniable similarity b/w the peoples;
very subjective
Fall 2007 Muniz-Fratecelli Foundations Summary
Major areas of knowledge advanced by CL:
 Describing Law: Information on Foreign Systems
 Mapping Law: Dynamic Models of Families, Traditions, and Cultures
Plato’s “Laws”: format of a story, discussion of how the best laws from different places should be used to govern
one city; education is at the forefront of the dialogue – concern w/ the right education for citizenship
Alisdair MacIntyre’s theory of “living tradition”: “A living tradition then is an historically extended, socially
embodied argument, and argument precisely in part about the goods that constitute that tradition. Within a
tradition the pursuit of goods extends through generations...”  Civil and Common Law are operating examples
of such traditions
Professor’s Wieacker’s Analysis of European Law
1. Anglo-Saxon Law deviates substantially from the continental legal style in matters such as organization of
courts, judicial procedures, the theory of legal sources and the manner of judicial argumentation
2. difference b/w the south-eastern European countries (former communist) such as basic societal value
judgements, the social and economic systems, and in the divergent conceptions of law that follow from MarxistLeninist theory
Four major epochs of European Legal History
1. early Middle Ages provided basic techniques of law and administration; after the collapse of the Western
Roman Empire the Latin Church became increasingly involved in the cultural continuity:
a. maintained the classical system of education (writing, documentation, filing, accounting
b. notions of official power and jurisdiction were preserved
c. notion of statute preserved
d. introduced the concept of an universal ecumenical law above local traditions and enactments
2. By creating an autonomous legal science, the classical High Middle Ages fashioned a secular, juridical subsystem
and mastered it intellectually. This system came to dominate life in Europe by the end of the late medieval
period.
a. renaissance of roman law at end of 11th century – jurists studied the Justinian code & claimed the
competence to decide vital conflicts of public and social life outside tradition, religion, etc. by reasoned
analysis of a specific legal problem  this led to a third, independent institution that claimed the power
to decide disputes b/w individuals, beyond the Church and usual forces in power
3. The early phase of the Modern Age until 1779, perfected upon these foundations the conceptualization and
systematization of law by using methodological tools of a new age dedicated to mathematics and the natural
sciences.
a. created the ‘law of reason’ (systemization of positive materials of law)  prepared the ground for the
modern constitutional state
4. The Modern Age, from 1789 to today – introduced the principle of societal solidarity, which has been legitimized
and constitutionally guaranteed and implemented in the form of basic social rights
Features of our Legal Culture
Personalization of the Law: involves self-determination and responsibility (contrasting theories on liberty and duty)
Legalism: the need to base decisions about social relationships and conflicts on a general rule of law, whose validity
and acceptance does not depend on any extrinsic (moral, social or political) value or purpose.  this concept
made possible the modern welfare state
Intellectualism: not restricted to the formal ordering of legal science; articulates, conceptually and systematically,
specific demands on justice in the form of a general idea of justice
Fall 2007 Muniz-Fratecelli Foundations Summary
Professor Berman’s Ten Distinctive Features of Western Law
1. Law is it’s own autonomous institution
2. The administration of law is entrusted to a special corps of people, who engage in legal activities on a
professional basis
3. the legal professionals (lawyers) are specially trained in a discrete body of higher learning identified as legal
learning, w/ its own literature and professional schools
4. the body of legal learning contains within it a legal science
5. law is conceived to be a coherent whole, an integrated system, which is developing in time over generations and
centuries
6. the body of law only survives b/c it contains a built-in mechanism for organic change
7. the growth of law is thought to have an internal logic – changes proceed by reinterpretation of the past to meet
present and future needs
8. the historicity of law is linked with the concept of its supremacy over political authorities
9. most distinctive  coexistence and competition of within the same community of diverse jurisdictions and
diverse legal systems (legal pluralism)
10. tension b/w ideals and realities, dynamic qualities and stability, transcendence and imminence of the Western
Legal tradition
Zweigert and Kötz, Introduction to comparative law (2d edn), pp. 32-47
Basic methodological principle of comparative law is functionality
 Ask what is the function of legal institutions in different countries may be, not what their doctrinal structure is.
(pg. 45)
Incomparables cannot usefully be compared, and in law the only things which are comparable are those which fulfill
the same function.
The comparatist must eradicate the preconceptions of his native legal system. Applies specifically to ‘sources of law’.
Comparatist must treat as a ‘source of law’ anything that moulds or affects the living law in the chosen system.
(pg. 35)
Idea that a function performed in a particular system by a rule can be performed in a foreign system not by a legal
rule but an extralegal phenomenon. (pg. 38)
o Ex: There may be a general condition of business that has not yet found its way into the books but which
in practice supersedes or bypasses rules of law fixed by the legislature or judiciary. (pg. 38)
o Necessitates careful inquiry. It is not that the foreign legal system has no mechanism for dealing with a
particular issue, it may just be an extralegal one.
One of the basic rules of comparative law: “different legal systems give the same or very similar solutions, even as to
detail, to the same problems of life, despite the great differences in their historical development, conceptual
structure, and style of operation.” (pg. 39)
Idea that there are parent legal systems (mature and well-developed systems also called ‘significant’ systems) that
are imitated (by ‘affiliated systems’). In order to narrow the research area one can first look at these parent
systems. (pg. 41)
Fall 2007 Muniz-Fratecelli Foundations Summary
 next step in the process of comparison is to build a system. Must develop a special syntax & vocabulary; must
be flexible and have concepts large enough to embrace the heterogenous legal institutions which are
functionally comparable (p.44)
David, Major legal systems in the world today (3d edn), pp. 1-31
INTRODUCTION
p.2
Comparative law as a science was developed in 20th century. Before, study of law was devoted to finding the
principles of just law, not to studying the law as it was applied in the real world (positive law). University studies
focused on Roman and Canon law.
p.3
Notion of “ius commune” (law of universal application) brought about by national codifications (such as Napoleonic
codification in France). It was believed that codes had universal value, solve problems by exegesis. Late 19 th
Century: breakdown of this notion and development of comparing national European laws.
p.4
1990, Paris: first International Congress on Comparative Law
Comparative law became fashionable in light of Darwinian theory and ideas of progress. Different legal systems
were studied to demonstrate progress of humanity.
p.5
Comparative law recognized as a factor in legal education (1831 in France).
It’s useful in legal philosophy to point out variations which exist in very concept of law itself.
p.6
Useful in legal theory for renewed study of “national” legal characteristics, their significance and continued
justification. Ex. France considers codification progressive and democratic, but other democracies reject
increased legislation as undemocratic.
p.7
Useful in understanding one’s own law and improving it. Beneficial models often carried out and used in several
countries (ex. The English cheque, the German limited liability co.).
Legislation: help transform society, not just maintain order.
p.8
Useful in understanding foreign peoples, therefore helps form better international relations.
p.9
For international public law, diplomats, etc. must understand others’ outlook/sense of justice.
“General principles of law recognized by civilized nations” (source of international law) can only be interpreted
through Comparative law.
p.10
Private int’l law: subject to different systems and rules in different countries, so:
-uncertainty about result of litigation
-conflicting solution to same problem in different countries
p.11
Int’l unification of the law: agreement on the substantive legal rules applicable to int’l relations. A major challenge
but necessary and comparative law needed to make it happen.
p.13
When considering foreign law, remember that some laws/procedures we consider essential may be only secondary
or even negligible elsewhere and vice-versa (law may be seen as ideal unattainable in practice, or may be
downgraded by good citizenship). Law alone does not reflect reality of social life.
p.14
Formal sources of law: legislation, custom, judicial decisions, doctrinal writings, equity.
Different notions as to relationship of there sources in different parts of the world (ex. How easily a legislator can
change a given law? How literally/restively are statutes interpreted?).
Fall 2007 Muniz-Fratecelli Foundations Summary
p.15
Structure of law: each system has concepts through which its rules are expressed and categories within which they
are organized. (sentencing-> judge or penitentiary authorities, surviving spouse-> matrimonial property or law of
inheritance...).
p.16
Comparatists must take into account these different ways of seeing things. The absence of exact correspondence
between legal concepts and categories in different legal systems is a big problem for comparative analysis.
Comparatists must explain mentality/concept of foreign legal system so that others can understand it.
p.18
THE IDEA OF A FAMILY OF LAWS
Each political society has its own law & usually several laws so-exist within a state (federal, provincial, community...).
However, we can detect a limited number of types/categories to organise this diversity in order to study it.
p.19
Each law is a system: it has a vocabulary to express concepts, its rules are categorized, it has techniques for
expressing & interpreting rules, it is linked to a view of the social order.
It is better to understand the structure, meaning and relationship of rules than to simply know the rules by heart.
Though legislators may modify rules, the other elements are intimately linked to our civilisation/way of thinking.
There is a continuity in the law which draws upon elements subjacent to rules.
p.20-21
Two criteria (used cumulatively, not separately) for the classification of laws into families:
-law’s conceptual structure or the theory of sources of the law
-the social objectives to be achieved with the help of the legal system or the place of law itself within the social
order
p.22-23
LEGAL FAMILIES IN THE WORLD TODAY
Three major contemporary legal families:
1- Romano-Germanic family
2- Common law family
3- family of the Socialist law
There are legal systems which do not fit in these 3 categories.
Romano-Germanic family
-on basis of Roman ius civileI
-rules of law = rules on conduct linked to ideas of justice and morality
-scholars formulate rules while administration & legal practitioners take care of administration and application
-mostly private law
-attach special importance to “codes”
-originated in Europe (joint effort of universities of Latin and Germanic countries)
-outside Europe, legal systems related to this family have their own characteristics (ex. In Muslim countries the
family laws were subject to traditional law and therefore only partially received).
p.24-25
Common law family
-includes law of England and laws modelled on English way
-formed primarily by judges
-seeks solution to trial, rather than general rule for future
-origins linked to royal power
-essentially a public law
-Like Romano-Germanic family, its expansion was due to colonisation or reception
-Outside Europe, often only partially received and always transformed by local civilisations
p.25
The two families above come together to form the Family of Western Law:
Fall 2007 Muniz-Fratecelli Foundations Summary
-influence of Christian morality
-since Renaissance, prominence to individualism, liberalism and personal rights
-Formulation of legal rule in Common law countries tends to follow Romano-Germanic example
-shared vision of justice, often producing similar answers to common problems
-“capitalist” or “bourgeois laws”
-Ex: Scotland, Isreal, South Africa, Quebec, Philippines
p.27
family of the Socialist law
-formerly Romano-Germanic countries, preserved some characteristics of R-G law
-revolutionary nature. Ambition of jurists is to overturn society and create the conditions to a new social order in
which concepts of state and law will disappear
-sole source or rules of law is the revolutionary work of the legislature, which expresses popular will, guided by the
Communist Party
-All means of production are collectivised
-All law is public law
-originated in Union of Soviet Socialist Republic
-socialist Europe and Asia is different from Soviet law
p.28
Other systems
MUSLIM, HINDU and JEWISH LAWS
In muslim countries, more attention is given to the model law linked to Islamic religion than to local custom (fact) or
the laws and decrees of the sovereign (administrated measures) and neither of these is thought to possess full
dignity of law.
Similar for Jewish and Hindu law.
p.30
FAR EAST (especially China)
The very value of law itself has traditionally been put into question.
See law as instrument of arbitrary action rather than the symbol of justice, it contributes to social disorder rather
than to social order.
Reconciliation and meditation is a greater value than justice.
Laws exist to intimidate or as a model, but law is not made with view to being applied.
p.32
BLACK AFRICA AND MALAGASY REPUBLIC
Here too, place more importance on harmony than respect for law. Community prevails over individualism. Often
laws adopted are just a veneer.
CLASS NOTES
- all comparators are self-conscious analysts
Plato’s Republic (the Laws) – a Cretan, a Spartan & an Athenian stranger on a religious pilgrimage to a shrine,
decide to have a discourse regarding the legal, education and cultural systems within Crete and Sparta. Engage
in a functional analysis of their institutions, as well as a comparative analysis. They don’t quite see the same
institutions formed in their respective functional/descriptive analysis’. Translate facts into legal norms. If you
prefer to have a port away from the main city (b/c location for perdition, corrupts ordinary citizens), then will
translate this into legal norm, write into constitution.
See comparative law as a phenomenon; process of comparison in terms of legal norms is quite ancient. CL emerges
as a discipline in late 18th, 19th centuries as experts get together, build up what comparative legal scholarship
should be.
Historically, there have been different perspectives on comparative legal scholarship:
Fall 2007 Muniz-Fratecelli Foundations Summary
1. A method: simply the structuring for thoughts  many people have different methods; start to question
efficiency
2. Science: should this be applied to comparative law?
3. Knowledge: knowledge of what?  knowledge of methods, derived from methods, presupposed by methods
What are the functions of CL? How does this contribute to the understanding of legal systems?
CL as descriptive enterprise, historical enterprise (how it was developed), normative/prescriptive enterprise (how
should they be developed). Of course this is not mutually exclusive, but it makes a difference whether we give
top place to one of these approaches
Problems of Social Context: what kind of context do you need to consider  legal, historical, social?
Glenn - CHAPTER 1 – A Theory of Tradition? The Changing Presence of the Past


most obvious & accepted element of tradition  its “pastness” (T.S. Eliot) – p.5
instant traditions are possible in law; e.x. national legal tradition could be seen as originating in the creation of a
particular state – p.6
 a present part is one which has been captured, in a way which allows present use and present, further,
transmission – p.7
 all legal traditions relied greatly on the spoken word as the principal means of capture; memory was the process
of internalizing that which was worth remembering  instruction in law taught how to internalize the law – p.8
 virtues of the oral tradition are the vices of the written one: written word can be destroyed through both
human (“literary genocide”) and natural (moths, time). – p.9
 presence of the past is a combination of:
1) the means of its capture in the past AND
2) the means of its articulation or perception in the present – p.12
 the reporting of current cases, in law, is an example of this large reflexive, looping characteristic of a living
tradition – p.15
 various reactions are possible face w/ a multitude of teachings from the past:
1) compliance – if enough people comply their conception of the tradition will define what that tradition
presently is, or at least, its primary base of information  first must extract primary teaching of the
tradition
2) resistance to the teaching of tradition (many reasons for this: overload, corruption, etc.) – p.17
 radical opposition to tradition is based on primacy of human reason  in the form of the general denial of the
authority of the past, while devising ‘a mode of authority independent of social continuity.’
 rationalism: only the p resent & future can be the place of current decisions; only present & future
considerations should be operative in critical decision; HOWEVER dilemma of the rationalist is in spite of the
emphasis on the present, there is a danger that the best of these constructions will be remembered
o thus the rationalist position ultimately tends to self-destruction the more it is defended – p.19
 rationality is more or less a hidden element in all contextual traditions, then CONTEXT is the unavoidable
companion of all efforts towards free-standing rationality
 tradition never reaches definitive form, but is rather, in the present, a series of interactive statements of
information – p.20
 theory of the exchange of information within a tradition: forms of communication which don’t include dialogue,
but exchange of info is constantly present in all forms of human cohabitation, and rationality is present in some
measure in all forms of exchange – p.21
 undefined or incomplete nature of all traditions  results from difficulty of concluding that an absolute or
irrefutable knowledge is found within the tradition since there is an ongoing process of exchange
Fall 2007 Muniz-Fratecelli Foundations Summary
o since tradition doesn’t exist in an invariant form there is less impetus to universalization (thus
fundamentalism represents a departure from tradition’s most fundamental characteristic)
 western though  tradition associated w/ static forms of social order – p.22
 dichotomy: rationality and change vs. tradition and stability – p.23
 takes a special effort to preserve tradition in the midst of change - p.24
 western world as part of its tradition has constructed a concept of time within which human rationality can be
seen as effecting change
o primacy of present is part of this tradition
o other traditions w/ different concepts of time will also have different concepts of change – p.26
TRADITION AND CORRUPTION
 parasitic traditions – live off a larger one and profit from its adherents in a way antithetical to their welfare and
well-being, e.x. traditions of crime – p.26
 indications today of generalized increase of organized crime & violence in the world  may indicate the decline
in influence of some larger traditions – p.27
 crime of corruption may destroy larger traditions from within  generally thought of as pecuniary corruption
which is a form of unjustified redistribution of the material resources of a society, a secretive form of inequality
 institutional corruption  role of institutions defined by tradition & play an intermediate role b/w individuals
and accumulated tradition; corruption occurs when members of the institution use their role for
aggrandizement
 intellectual corruption  extremely difficult to define or identify; falsehood or indefensible dogma may be
perpetuated in the preservation of power and interest; also entails arbitrary efforts to destroy or eliminate the
dynamic
Glenn - CHAPTER 2 – Between Traditions: Identity, Persuasion and Survival


traditions have two sources of instability: internal & external
if a tradition is constituted internally by an exchange of information, it is open to further exchanges of info w/
other traditions, revealing diversity & internal rationality – p.31
TRADITION AND IDENTITY
 concern w/ identity arises from external contact  identity is constructed by explicit (clearly expressed) or
implicit (implied) opposition; essential in the process of self-understanding but menace to internal cohesion
 there is no contact b/w traditions which does not involve exchange of info
 since tradition is best defined as information, the (slightest) contact w/ another tradition implies a variation in
the info base of the initial tradition – p.32
 in today’s world there are therefore no pure identities of tradition – p.33
 tradition underlies all present conceptions of social units or identity it is constitutive of the context which only
exists when the tradition has endured over time
 some tendency to define tradition as present ritual; tradition also underlies importance accorded to colour, race,
state or geography
 in all cases, the value accorded present features of life is derived from tradition
 two widely –used present criteria for social identity: race (ethnicity) and nationality (statehood) – p.34
o race, ethnicity and colour are social constructions varying in importance and intensity over time – p.35
 important question: extent to which race plays a role in traditions; doesn’t appear to be a factor in major legal
traditions
o however racism can still exist as an internal counterpoint or corruption – p.36
 state emerges as the product of a particular tradition  tradition (received information) is the controlling
background within which all current states exist / tradition is the controlling element in determining social
identity
 THEREFORE - no fundamentally different, totally irreconcilable social identities in the world
PROTECTING IDENTITY
Fall 2007 Muniz-Fratecelli Foundations Summary
 identity as triptych: overall identity of the tradition (info base & internal dissenting/external contrasting
elements); the leading version of the tradition, which ‘appears’ to be the truest version; and the underlying
element(s) of the tradition, without which no other elements could stand – p.37
 change to underlying elements of tradition is problematic, since it would appear to bring it to an end
o can a tradition protect its identity?  means range from a simple obligation to remember through to
instruments such as heresy, treason or sedition – p.38
o can a tradition restrain its adherents from abandoning it? causes fundamental dissent which may lead
to schism and upheaval
 if tradition is information, then the tradition which attracts the most adherence will be the one whose
information is the most persuasive – p.29
 info of traditions thus represents authority but is not necessarily authoritative  persuasive only
 great & powerful traditions offer eternal and ultimately true reasons for adherence
 traditions, and hence communities, come to be defined by the totality of the flow of info in the world, including
its quality and meaning –p.40
 the advent of computer technology has given rise to an epistemic community (one linked by modern means of
communication) which allows it to transcend existing communities, notably states
 written traditions now have new mobility
 oral traditions  new forms of expansion w/ audio-visual communication – p.41
 increasing freedom of communication has different impacts: either present no problem or may feel threatened
– p.42
 acceleration of contact amongst traditions will increase the necessity for evaluation across traditions
COMMENSURABILITY OF APPLES AND ORANGES
 notions of incommensurability are part of the western, rational traditions
 if two things are incommensurable than you cannot conclude anything about their respective merits: they simply
are  they are facts & facts don’t provide normative instruction – p.43
 absent normative instruction we are left to our own reflective processes – p.44
 the argument of incommensurability assumes static/distinct social identities or traditions  the notion is
incompatible with the fundamental nature of all traditions (flow of information)
 we compare different versions of morality, or law, with internal criteria – p.45
 comparative reasoning thus permits & facilitates judgement in a way that precludes conflict  the less
information the greater the chance of a conflict
 further version of the incommensurability argument: falsity of all translations
o argument that this exaggerates the difficulties in human communication & the importance of text – p.46
 question – to what extent to which a tradition teaches truths means that the truths are dominant?
o essential nature of a tradition means it is tolerant of different views; thus dominance is a corruption
o criminal corruption is done underground
o societal domination is the intellectual corruption of a tradition  the process of closing down the
dynamic of a tradition; only one voice is heard – p.48
 each major tradition has the potential to globalize in a way that suppresses variant opinion – 3 candidates: west,
Islam and Asia
 we may be reaching the limits of expansion of traditions – p.50
THE STATE AND THE NEW DIASPORAS
 the state may be explained by the ascendance, in the west, of a tradition of individualized, constructive
rationality – p.51
 the rational tradition has created or exacerbated a principle of formal legal disharmony in the world (conflict of
laws being the least disruptive forms)
 furthermore the state becomes arbiter of its own membership in the legal tradition and thus becomes a majore
obstacle to freedom of movement in the world & individual, rational choice in movement
 finally, the state’s internal instrument of rationality, constitutional law, becomes the arbiter of other forms of
rationality which may continue to exist or emerge within it – p.52
Fall 2007 Muniz-Fratecelli Foundations Summary
 different traditions thus assert themselves, or re-assert themselves within a particular, crystallized form of a
tradition – the state – p.55
Merryman, The Civil Law tradition (3d edn), pp. 1-5
Difference between the term legal system and legal tradition
 A legal system is an operating set of legal institutions, procedures, and rules. Pg. 1
 There are many legal systems, each state would have its own, each country and organization would have its
own.
 A legal tradition however is the overarching category into which the various systems are grouped. These are Civil
Law and Common Law.
 Previously the tradition of socialist law could be identified. “However most of the socialist law nations had
previously been participants in the civil law tradition, to which they reverted when the socialist law
superstructure collapsed.” Pg. 2
 There is no such thing as the civil law system, or the common law system but rather there are different systems
grouped together under these two traditions
 The legal tradition puts the legal system into cultural perspective
o The legal tradition is a set of deeply rooted and historical attitudes on ques of; the nature of law, role of
law in society, how law should be made, applied, studied etc.
 Of the two civil law older and more widely distributed. Dates back to 450 BC supposed publication date of the
Twelve Tables in Rome.
 Dominant legal tradition in Europe, Latin America, parts of Africa and Asia.
 Civil law was the tradition used by the European scholars who were the founders of international law.
 It is more influential and often thought of as culturally superior to common law which is viewed as crude and
unorganized. Pg. 3
 Beginning of Common law is marked by the date 1066 AD when the Normans defeated the natives at Hastings
and conquered England. Making common law only 900 years old
 As a result of British colonial expansion common law was also widely distributed and is the tradition used in
Great Britain, Ireland, Canada, the US, Australia, New Zealand, and has had an influence on the law of many
nations in Asia and Africa as well.
 Jurists in Japan, China and Korea think of themselves as in the civil law tradition
o Comparative lawyers recognize distinct tradition in East Asia and suggest existence of a Confucian legal
tradition. Pg. 4
 Secular law in most Islamic countries has its origins in civil and common law traditions. However countries
w/large Islamic populations which have had a vigorous religious revival have placed renewed emphasis on
Islamic legal traditions. Pg. 4
David, “Existe-t-il un droit occidental?” in K.H. Nadelmann, et al., XXth Century comparative and Conflicts Law, pp.
56-64
Question addressed in this essay (p.56):
 Despite the considerable and obvious differences between Common Law and Civil Law, is there between them
sufficient similarities so as to be constraint to group them together when comparing them to other systems.
(p.56-57 )
 There are innumerable differences between CML and CVL
 From a strictly judicial point of view, there exists or can exist a system of roman laws and a system of CML; a
system of western law does not exist
 However, we should consider that in the Soviet Union and in socialist countries, the doctrine calls for unity in
comparison to what they call “droits bourgeois” (roman law and CML)
Fall 2007 Muniz-Fratecelli Foundations Summary
 Jurists in socialist countries are aware of the differences b/w CML and CVL, but nonetheless group them
together from a philosophical point of vu: systems not inspired by a Marxist/collectivist doctrine, but rather
from a capitalist society
p.58-59
 For jurists who focus less on the technicalities of law, and see law more as a group of norms which describe a
civilisation, they can understand the terms “western law”
 Originally, author had said “western law” has 3 basic foundations:
o Political order: liberalism
o Economical order: capitalism
o Moral order: Christian morality
 Now, he rejects that (many western countries are leaning towards socialism, there African and Asian countries
which are not Christian, laws which make up the systems date back to a time which did not present these 3
characteristics)
(p.60-61)
 Now, he considers the role society places on the law to define western law:
o As westerners our ideal is a society governed as much as possible by the law
o Our ideal is “the rule of law”
o We don’t conceive a society to be viable and just if it is not founded on the law
 Vs Marxist doctrine where the law is perceived as a stopgap, worthy for the transitional socialist period, and
suppose to disappear in the final phase of communism
 2 points that show an important connection between CML and CVL countries (he calls CVL “droit continental”)
1- 19th century: The ideal of “rule of law” was proclaimed in European countries and CML countries,
but understood differently:
 In Europe, following roman tradition, ideal used in mostly private law
 In CML countries, law developed mostly in public sector (concerning the Crown).
 Today, the two systems are closer. Europe’s public law was inspired by CML countries.
Private law in CML countries is now comparable to that of roman origin
(p.62-63)
2- In modern days, the state is omnipresent (Welfare-State, public health, education...). So, law is no
longer just a question of solving disputes, but a way to organise and reform society. Law has become
for legislative than jurisdictional.
 CML going through crisis which will extend definition of legal rule and bring it closer to CVL
techniques of judicial research and interpretation of the law.
(p.64)
 When author was a student, CML was foreign concept to law students in France, huge separation between the 2
systems. There was no “western law”
 After WWII, rebirth of “natural law” idea. There was a need for unity of western world, in which jurists should
take part, to defend its values.
 There is a desire for unity today that did not exist 50 years ago. With the efforts of comprehension and
reconciliation, we can imagine that in the future “western law” could refer to a judicial reality.
CLASS NOTES
Glenn
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invention of tradition: traditions are not immemorial, human agency is part of it
imagination factors into tradition  Benedict Anderson claimed that nationalism as a movement is a recent
phenomena; early manifestation in the French Revolution where the idea of the nation was born until the end
of the first world war.
the community had to be posited as a creation of our will; a projection of what we wanted to be as much as
what we were
newspapers, telegraphs, novels, all created the idea of a joined society people everywhere can have access to
Fall 2007 Muniz-Fratecelli Foundations Summary
the same information and be reading it at the same time regardless of their geographical location
- concept of exit, voice & loyalty in the reform of traditions: railroad example – agricultural producers used
roads to transports their goods (more expensive) instead of using the railroad (cheaper). who had a stake in
reforming the railroad? the availability of exit was in that the agricultural producers had another option;
- reform is not possible if the exit option is there b/c people who would actually care would leave ex: parents
taking their kids out of public schools with vouchers to private schools
- Loyalty – Glenn points to the idea of reform in tradition
- incommensurability: cannot compare two particular things on the same measure; e.x. apples vs. oranges  is
there a universal form of common measurement
- tragic choices: e.x. the case of the young man who is torn b/w joining the resistance or taking care of his ailing
grandmother
1.
2.
3.
4.
Legal tradition vs. legal system?
Is there a Western legal tradition?
How would we know?  sources, evidence, methods
Glenn talks about proselytism (conversion), universalism, domination, globalization and corruption
 Glenn is a normative theory book: Normative statements affirm how things should or ought to be, how to value
them, which things are good or bad, which actions are right or wrong.
- Glenn criticizes the rationalist tradition
- idea of a Western legal tradition  not just Christian and liberal
- is the rule of law only available to the west? or has it been taken too far in the west, b/c it governs every part
of our lives?
- the rule of law: the idea that we ought to have our life together determined by rules or comment that are
generally applicable  our lives are ordered by laws that are public, written and general
Glenn - CHAPTER 5 – A Civil Law Tradition: the Centrality of the Person
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Twelve Tables (450 BC) seen as the beginning of roman and civil law – p.127
law of the people grew out of institutions which had a participatory character (led to legitimization)
two major instances of creating institutions to facilitate growth of law through widespread public participation
 common and civil law
the Romans simply let one of their nobles or patricians (the iudex) decide an individual case; access was
controlled by an official – p.128
simply getting in front of a judge, directly and with no official screening, took a thousand years
o little legislation and the judges were amateurs  a monopoly was created in interpreting the law in the
hands of the priests
Roman law found its origins in advice given by jurisconsults w/ respect to particular cases or disputes<
it became an object of admiration b/c jurisconsults were able to state conditions for governance of complex
personal relationship
the period of the classical jurists (whose opinions have lasted longest): 1st century BC to 3rd century AD
in the century Rome had fallen, Justinian ordered a compilation of laws  Justinian Code 533 AD – p.130
when the code was finished, it was very finished – Justinian prohibited further comment on it
chthonic law that prevailed over roman law: mostly unwritten; didn’t say much about contracts or obligations;
family & succession laws kept large families together; property law was mostly to communal use  legal notion
was seisin & this was often joint or collective in nature – p. 131
o no barriers such as the praetor of roman law
Fall 2007 Muniz-Fratecelli Foundations Summary
 both chthonic and roman traditions had notions of substantive law, thus there was a general agreement that
judges had to get the facts right; procedure had to be investigative & there had to be courts of appeal since
erroneous decisions were illegal
o so there was a certain underlying harmony in continental Europe in the 11th century (p.232)
 Christianity no longer appeared as a major obstacle to a legal tradition, since the 4th century they had been
developing canon law which just took its place beside roman law – p.133
 France’s codification of private law, under Napoleon in 1804, was the world’s first national, systemic and rational
codification of law  civil code of Germany (1900)
 in these traditions the judge is presumed to know the law (jura novit curia) and has to apply it properly – p.135
THE RATIONALITY OF THE CODES
 visible elements of civil law: codes of law, large resident judiciaries, procedure which is controlled by the judge,
denial of judicial law-making, and historical prestige of law professors – p.136
 from the time of its rediscovery, roman law continued to expand  customs of region written down;
elimination of particular wrongs of roman law
 w/ absence of institutional barriers (formulary procedure) law can go where it wants to go  texts multiply, thus
addition of penal codes, commercial codes, urban codes, etc.
 the state, once conceptualized and given a name in the seventeenth century was seen as capable of doing
anything – p.137
 Defn – Casuistry: originally the theological discipline of resolution of individual or particular cases – p.138
 French civil code drafted by practitioners: language is fairly untechnical
 German civil code: probably most abstract of codes w/ a general introductory part applicable to all else – known
as the ‘professors law’ & is parodied in Germany
 in abandoning casuistic expression, in favour of technical and abstract expression, law become difficult to learn p.139
 in 14th or 15th century Europe there was gross social inequality; chthonic tradition had become corrupt, stratified
and hierarchical
 the inherent vulnerability of the chthonic tradition is best demonstrated by the success of enlightenment
thinking itself
o the existing law was relation & obligational  people were stuck in their existing relations to one
another; there were overpowering reasons to change it – p.140
 the ius of roman law becomes formulated as unilateral entitlement and law becomes the earthly sanction to
ensure that such entitlements are respected – it becomes subjective and thus generates rights
o communal forms of ownership were prohibited & the trust was essentially rendered impossible in
continental law – p.141
o contracts become the meeting of autonomous wills; no notion of consideration
o delictual obligation becomes fault-based (France) or right-based (Germany)
o rights are not absolute – law controls the conditions & manner of their excercise
o they are however a powerful instrument for bringing about basic conditions of human dignity and a
notion of social equality – p.142
LAW AS REASON’S INSTRUMENT
 change in the expression of law follows from the necessity of placing explicit human rationality above the
interstitial rationality of the chthonic or Talmudic traditions
 What does it mean to be rational in law? – p.143
1) human construction is possible; from no thing can be developed some thing
2) the means of creation is through logical though, and logic is embodied in that which is known as the law of
non-contradiction  there is no middle ground, between contradictory things
o what you now have is precision since you have consistency which allows you to build – p.144
 now there is a separation of the state from the church, and the separation of distinct powers within the state
 there is a primacy of codes and legislation in general that is reinforced by ongoing scepticism towards the civilian
judiciary – p.146 (remember the judges used to be corrupt)
Fall 2007 Muniz-Fratecelli Foundations Summary
o the judicial function now is one of verification of claims of violation of pre-existing rights & remedying
those violations – p.146
 roman law was casuistic in expression; there was no machinery or tradition for effecting major and radical
change – p.147
o to change something must first isolate it from everything else, so you can work on it (includes states
which need precise boundaries) and you need a concept of historical time in which this can happen
(change from then to now)
 the notion of a fact was invented in the 17th century and is derived from the legal and Roman notion of the
factum
 w/ the separation of mind and matter  possibility of separate laws, separate disciplines of philosophy of law
and sociology of law – p.150
CIVIL LAW AND COMPARATIVE LAW
 there was another law for people who were not Roman – the ius gentium or the law of the people generally –
p.156
 the result of the spread of roman law was the creation of new identities in Europe, those of nation-states, the
people of which could be identified by their citizenship
 law is formally defined to exclude other solutions and had the function of binding people together creating an
identity that didn’t previously exist – p.157
 the result of this process of unifying law  new phenomenon of legal disunity in Europe
o each state created its own unity (w/ codes tending to universal expression) but the combination was
destructive of any larger unity
 General effect of systematic thinking:
systems require boundaries that of the states;
systems require consistency provided by exclusivity of sources;
systems conflict  science of European private intl. law comes into being
 era of radical separation of European laws & European identities was short-lived (1804 to mid-20th c.) – p. 158
 the state in the tradition of civil law will allow its people to leave  protection of identity is accomplished by
keeping people out; constitutional guarantees of people are not interpreted as being of universal application;
only people on the inside benefit from them – p.162
 comparative law has a formal, structured place in civil law thinking – since its uninhibited practice can be
destabilizing there are prohibitions on certain uses of it – p.163
 What is going on in terms of present exchange of info?
o Civil law is taking a beating in terms of ecology, animals, economic inequality & refugees – p.165
 civil law tradition associated with dominance – p.166
Von Mehren and Gordley, The Civil Law system (2d edn), pp. 3-14
Two points of difference emphasized b/w civil and common law:
1) in CVL, large areas are codified
2) CVL was strongly & variously influenced by Roman law – p.3
 from the end of the 8th century, western Europe had become an agricultural state
 the law was fragmentary, like the political order – p.5
 Justinian’s codes were introduced into western Europe in 544 when the eastern Empire reconquered Italy: the
codes comprise the Institutes, the Digest, the Code and the Novels
 late 11th century – first lectures on the Digest at Bologna; begin the development of a legal science around that
body of law – p.7
 period of 11th – 14th century: 2 differences appear – p.8
o the revived Roman law has a great impact
o the English kings create an effective, centralized system of courts for the administration of royal law
 Glossators: scholars who initiated the systematic study of Roman law (11th century)
Fall 2007 Muniz-Fratecelli Foundations Summary
o explained individual texts of the Corpus juris civilis by attempting to reconcile them logically w/ other
texts compared passages of the texts, raised a difficulty or suggested a solution
 Commentators: go beyond glosses on individual legal texts & prepare systematic comments upon legal
problems; achieve a synthesis w/ law (13th century)
o their work was a response to two changes that occurred in the 12th & 13th century
 academic study of law had ceased to be based exclusively on the Corpus juris civilis (Canon law
was taught and a systematic philosophy of natural law was developed – p.9
 the Roman law ceased to be merely the subject of academic study; by 1200 it actually became
enforceable in Italy, where local custom or statute was not contrary to it
 Reception of legal studies came about in various ways: - p.10
o Italy  high prestige of studies meant early reception;
o France  large-scale instruction in Roman law didn’t start until the 13th century;
o Germany  didn’t receive the Roman law until close of the Middle Ages & then received it in its totality;
 (1495) – caused by lack of legal unity; lack of written law which was seen as a major cause for
the unsystematic nature & the lack of rational structure of the Germanic law; lack of legal
professionals meant that students trained in Roman law had to fill this role; - p.11
 Roman law became subsidiary; local law, typically Germanic in its roots, took precedence,
reflecting the old Germanic traditions of the supremacy of local law
o England  never received it at all
 among the most important institutions developed by William & his successors for the maintenance &
strengthening of central authority was the king’s court
 12th century – Henry I began the practice of sending his ministers around the country to hear cases in the local
courts; the king’s court became the most powerful political institution in the country – p.12
 unified court system  resulted in growth of a law common to the entire realm w/ 2 results:
1) called forth an organized class of lawyers w/ own tradition of legal education independent of that
from the universities (obstacle to reception of Roman law)
2) England achieved a truly common law through a slow & organic growth but an early date – p.13
 greatest achievement of French Civil Code was to give France a national, unified, & coherent body of law;
Germany didn’t achieve political unity until the final decades of the 19th century – p.14
Harold Berman, Law and Revolution, pp. 49-61, 120-32
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in the late 11th & 12th c.  every country of the West created professional courts, a body of legislation, a legal
profession, a legal literature, a “science of law”
o primary impulse for this development: papal supremacy over the entire Western church and the
independence of the church from secular control – p.50
o the church in the West achieved for the first time a legal identity independent of emperors, kings, and
feudal lords; also separation of ecclesiastical law from ecclesiastical control
o in Germany the folklaw maintained the necessary foundation (a communitarian character of society)
that allowed secular legal systems to replace it
 the new law, in contrast, was learned, sophisticated, systematized – p.51
TRIBAL LAW
 earliest known legal orders prevailing among the people of northern & western Europe were mainly tribal
o basic unit within tribe was the household  community of comradeship & trust based partly on kinship
& partly on mutual oaths of protection and service (blood feuds common)
o there were also territorial legal units consisting typically of households grouped in villages, grouped in
larger units, etc.
 at the head of the tribes and communities stood royal and ecclesiastical authorities – p.52
 w/ the final disintegration of the Western Roman Empire 5th c., roman law in Germany virtually disappeared
o but in some places “Roman vulgar law” survived  a law averse to strict concepts, could not live up to
standards of classical jurisprudence;
Fall 2007 Muniz-Fratecelli Foundations Summary
 importance is that they helped to preserve the idea that law should play a role in the ordering of
political and social relationships – p.53
 institution of monetary sanctions for crime should be judged by the extent that it served to forestall interfamily
vendettas  facilitated negotiation and mediation b/w hostile families – p.55
 the German peoples from earliest times held public assemblies (moots) to hear & decide disputes
o jurisdiction however was dependent on consent of both parties who might not remain throughout, and
the moot couldn’t compel them to submit to the decision
 moot therefore created a sufficient degree of trust b/w the parties in order to be efficient – p.56
 polar relationship between vengeance (blood feud) and pacification (composition of blood feud) in Germanic
folklaw is an example of the intense dialectic of mistrust which exists in many contemporary kinship societies –
p.57
o the Germanic trial was a symbolic continuation of the blood feud  hurling oaths instead of blows –
p.60
 importance of the household within the tribe shouldn’t obscure the growing importance of bonds of lordship &
bonds of territorial community
o no conflict b/w kindred power and territorial community – p.61
THE ORIGIN OF WESTERN LEGAL SCIENCE IN THE EUROPEAN UNIVERSITIES
 emergence of modern western legal systems in 11th and 12th c. closely related to emergence of 1st European
universities
o first time law was taught as a distinct and systematized body of knowledge, a science, in which individual
legal decisions, rules, and enactments were studied objectively & were explained in terms of general
principles basic to the system as a whole – p.120
o legal rules, concepts, decisions and procedures remained data BUT consciousness of participants in legal
activities came to include a systematic study of them and an accumulation of a body of knowledge about
them
 understanding was merged w/ interpretation which was merged w/ application
 the law that was first taught & studied systematically in the West was the prevailing law: - p.121
o studied the Digest, an enormous collection of legal materials which had been compiled by Justinian in
534 A.D.
o the jurists who studied the ancient texts believed that the law had a universal and permanent quality 
the law was applicable in all times and in all places – p.122
 two other ingredients necessary to creation of a Western legal tradition:
o method of analysis and synthesis which was applied to the legal texts - “scholasticism”
o context in which the scholastic method was applied to the books of Roman law – university – p.123
THE LAW SCHOOL OF BOLOGNA
 students were in a precarious legal situation  Italian merchant that had a dispute with an English merchant,
could exact damages from any English students present
 thus, students formed a union; became incorporated so that they could bargain effectively w/ the city govt. and
dominate the admin. of the school
 city of Bologna gave the students a charter which permitted them to make contracts; in effect they acquired an
artificial citizenship of their own – p.124
 their general council ruled by majority vote: large issues were acted on by an assembly made up of all students
o part of their power was economic, if they left so did their money – p.125
 education throughout Europe in the 12th c. was supervised by ecclesiastical rather than by secular authority
 but European universities established themselves as educational institutions where professors were free to take
opposing positions – p.126
 study of the liberal arts was a prerequisite to the study of law, theology and medicine from 12th c.
THE CURRICULUM AND TEACHING METHOD
 likely that law school was founded primarily for the purpose of studying the text:
o manuscript consisted of four parts:
 the Code – 12 books of ordinances & decisions of the Roman emperors before Justinian
 the Novels – laws promulgated by Emperor Justinian
Fall 2007 Muniz-Fratecelli Foundations Summary
 the Institutes – a short textbook designed as an intro for beginning law students
 the Digest – 50 books of multiple extracts from the opinions of Roman jurists on a very wide
variety of legal questions – p.127 (of primary importance)
 “municipal” law (jus civilis) and “the law of nations” (jus gentium) was touched upon incidentally
 legal propositions which the Digest set forth were often “holdings” in actual cases; others were statements
(edicts) of magistrates, called praetors, of how they would rule in prospective cases – p.128
 the primary task of the jurists as they conceived it was to provide solutions for cases that had arisen or might
arise, testing and revising their central ideas by observing their effects on particular cases – p.129
 in analyzing the texts of Justinian, the professors would introduce legal questions of current practical
significance and would analyze them in the light of the Roman texts as well as of the canon law
THE SCHOLASTIC METHOD OF ANALYSIS AND SYNTHESIS
 method (fully developed 12 c.) presupposes the absolute authority of certain books, which are to be
comprehended as containing an integrated and complete body of doctrine; but also presupposes that there may
be both gaps & contradictions within the text
o it sets as its main task the summation of the text, the closing of the gaps within it, the resolution of
contradictions
 this method was promoted by the teaching at the university, particularly that of glossing the text and posing
questions for disputation – p.131
Portalis, “Discours préliminaire prononcé lors de la présentation du projet de la Commission du gouvernement” in
Gordley and von Mehren, An introduction to the comparative study of private law, pp. 50-52
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task of law:
o to establish in broad perspective the general principles of the law
o to establish principles that are fertile in consequences
o not to descend into detail into the questions which each topic may raise
“There are times when one is condemned to ignorance because there is a lack of books; there are other times
when it is difficult to learn because there are too many of them.”
absent a precise text on each subject, opinions or accepted principles can take the place of a statute
error to think that a body of laws could exist which could foresee all cases in advance & nevertheless be within
the grasp of the least citizen – p.52
Aubry & Rau: Law (droit) is the body of rules or precepts of conduct by observation of which it is permitted to
restrain man by external or physical coercion
o positive law is the body of precepts that have declared susceptible of coercion by custom or statute (loi)
CLASS NOTES
Is there continuity between the Roman law and modern continental law?
Or does modern continental law effect a significant break with the Roman legal tradition?
What about the European "chthonic" tradition (Glenn) or "folklaw" (Berman)?
Does modern continental law represent a break with it, or a culmination of it?
What is the relative importance of the Civil Code (and Codes in general) versus professional legal scholarship
to the tradition?
What role did legislators (and legislatures) and universities play? Has this changed?
Feel free to draw on Portalis' stated intention in drafting the Civil Code, as well as the historiographical
accounts of Berman, Glenn, and von Mehren and Gordley.
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First Movement: the Civil Law of Rome (549 BC), the law that applied to the citizen (including criminal
law and privately prosecuted crimes); this led to the four texts of the Code Civilis – Justinian Code (479
AD) being created
Fall 2007 Muniz-Fratecelli Foundations Summary
- Second Movement: the Civil Law tradition – prevalent in continental Europe, all of Latin America, China
(modifications), and former colonies of Continental Europe (French, Dutch),  takes after the Napoleon
Code and not the Justinian one
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What are the characteristic features and institutions of the Civil Law tradition?
o role of scholars, legislators, judges (no clean cut lines between systems) – Civil Code of Justinian
was drafted by judges, the Civil Code of Germany was drafted by law professors
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once you establish an institution, not all the doors are open to you – the decisions push you along a
certain path. do you study a legal tradition or a legal system? what place did institutions (economic
interaction, universities, etc.) have in a legal tradition and a legal system? do they offer a mediating role
between systems and traditions?
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came back to the Justinian code in the 13th century due to economic complexity and political
centralization, structural framework laid down for the concept of the universal law  there is an
emphasis on a systematic legal approach
o serves an intellectual need, b/c the systematic approach cleans up the law and gives it structure
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continuity vs. break: the development of canon law b/c of its reliance on natural law, etc. makes us see
the roman law as something more contextual and text-based, less neatly organized than those traditions
that come back to it
o both answers can be right, depending on what you are answering
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in Civil Law, if I inherit from my father than I am placed in his position, his debts and assets are mine;
debts just keep on being deducted
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in Common Law the estate is a different thing; debts stop once the value of the estate is reached
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an example of an elephant escaping from the circus and trampling someone: civil lawyer begins with a
concept of harm and will deduct a solution from it, will adapt the principles to the damage; the
common lawyer will go to the concept of elephant in the index and find all the cases in relation to
elephants
Glenn - CHAPTER 7 – A Common Law Tradition: The Ethic of Adjudication
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with the military conquest of England by the Normans, the first identifiable, modern state came into being in
Europe with defined (though largely geographical) boundaries and a central government – p.225
only avenue for a Norman legal order  loyal judiciary
o unique to common law: no loyal chthonic people; no available revelation; no corpus of doctrine
o some kind of permanent judicial officer was required who could work in a controlled efficient manner
 only choice is that of priest (can read & write; usually trained in canon law)
o also wise to co-opt the population into the process of the judiciary so the decisions were left to the
locals than the judges could just get the right questions asked in a number of cases and be off to another
town – p.226
English judges, as professional judges, were different from the Roman amateur ones, BUT IN BOTH CASES the
actual law-finding was the work of amateurs – either judge or jury – p.227
o both acted on the basis of instructions (praetor in Rome, judge in England)
o both had a process of screening (praetor’s edict; writs)
Fall 2007 Muniz-Fratecelli Foundations Summary
 to develop the teaching necessary for the new legal professions, the English lawyers developed the Inns of the
Court, charge w/ instruction in the common law – p.228
LAWYER’S LAW: PLEADING TO THE ISSUE
 each writ gave rise to a particular procedure to be followed, appropriate for the type of dispute – p.229
 outside the writs there was no common law; no way to state a case or get before a judge
 writs allowed the judge to attain, and maintain, priority of place in the hierarchy of common law institutions
 writ  form of instructions from the Crown to a royal officer
o sometimes no writ was available: ‘where there is no remedy there is no wrong’
 common law was composed of a series of procedural routes (remedies) to get before a jury, who enjoyed a
monopoly on substantive decision making
 judge’s function was to decide whether the case which emerged fell within the chosen writ
 task of lawyers was to argue about whether the verdict they wanted from the jury fell within the writ (‘pleading
to issue’) – p.230
 there were only first-instance judges, no courts of appeal
 the writs began to fill entire fields of human activity: writ of ejectment; writs of debt and covenant; writ of
trespass or battery; writs for the control of other courts – p.232
A COMMUNAL LAW
 common law courts did not lay claim to large areas of exclusive jurisdiction (although available for people if they
wanted) & the writ system limited the reach of the common law that received royal approval – p.234
 separation of law and morals in common law history was just the way things were and had to be
 w/ the new relations b/w popes and kings extending throughout Europe from the 11th century, ecclesiastical
courts assumed jurisdiction over family law and successions
 although relations b/w the courts were amicable, the royal courts reserved the right to intervene in a
miscarriage of justice – p.235
 foundations of the present administrative law jurisdiction of common law courts is found in this process
 the common law’s limits were societal though formally expressed through the language of writs; expressed itself
in terms of the surround society – p.236
o there is still a law of torts although no general principles of liability, only given wrongs
o contract law emerged from the finding of a natural conclusion from the facts that it had to regulate
o land was not owned, but held and enjoyed; in a sense the Crown permitted indefinite enjoyment
 Coke in his struggle with the Crown in the 17th century spoke of ‘the right reason of law’ – no one can be wiser
than law which is the perfection of law – p.237
 common law grew through the accumulation of precedent, but did not constitute unalterable law – p.238
 case reporting was haphazard; nobody beyond the parties, cared who won; rulings didn’t impact local law
 existence of rights in English law has been denied well into the 20th century & there is resistance now to a bill of
rights or a right to privacy – p.239
CHANGING FUNDAMENTALS: PROCEDURE
 Jeremy Bentham complained about the laws in England which meant changing the procedure – writs and forms
of action
 the reform did three things: p.242
1) 1832 – eliminated the requirement of a formal grant of a writ by the chancellor’s office to initiate an action;
after the private issuance of writs (now just a summonses to a defendant to appear) was established:
2) tidying up began – after open courts we got open pleading  people could just state their case and expect
the law to be applied; the jury became optional b/c it wasn’t expected to handle all manners of cases, thus
from mid-19th c. judges decided cases on merits and by application of substantive law: this was borrowed
from elsewhere
3) 1875 - court of appeals, two levels: possibility of judicial error had become possible ; same three-level
structure as continental courts – p.243
 through the reform the judges retained their formal status; dismissal is nearly impossible, guarantees of salary
independence of the judiciary was part of the constitutional struggle in the 17th century – p.244
 judges are freed to be law-seekers and not law-appliers  this independence is dangerous for systems
Fall 2007 Muniz-Fratecelli Foundations Summary
 internal growth of the common law was due to intellectual shifts: enlightenment (16th century - Cujas) and the
thinking going on in the world of writs – p.245
 by the 19th century the general idea of national, positive, constructed law received support
o emergence of stare decisis – idea that each decision of the court would represent a rule of law, similar to
a code
o two important ideas emerge:
 judges actually making binding law
 systematic, doctrinal treatises explicating the law of the judges – p.246
COMMON LAW AND NATION STATES
 what has happened, generally, is the marriage of the idea of a common law w/ that of multiple nation-states
o it may still be possible to speak of a single common law tradition since the tradition demands less in
terms of compliance – p.248
 same tendency as in civil law for the common law to be nationalized for purposes of national identity
o western law is controllable and may be given national direction
o however nationalizing common law means doing something w/ the control of the judges
 in the U.S. the law gives preference to ideas derived from civil law even though it is common law: - p.249
o state judges were assigned through judicial election
o since each state had their judges & common law, it followed that so should the federal govt.
o judges became seen as formal participants in govt. and attached to legislative authority – p.250
 now w/ millions of decisions from open courts, it is said that stare decisis is self-destructing; decisions must be
batched together to see if there is a jurisprudence constant – p.251
 particular genius of U.S. law is the combo of civil and common law – individual rights & judicial power are
distinctive features – p.252
o local patterns of life were created through the law
o gave the Americans a way to identify themselves
 Elsewhere in the world, citation patterns indicate a high level of inter-jurisdictional use of precedent, of
persuasive authority; a shared notion of common law has impeded federalisation of court structures, either
through maintenance in principle of a unitary court system, as in Canada, or of leaving much federal-matter
litigation to state courts, as in Australia – p.253
 identities of those who adhere to the common law are not well protected by it  only has concepts of treason
and sedition, while exit through change of nationality is commonplace – p.254
THE PRACTICE OF COMPARISON
 notion of trust emerged from practice of comparison – p.256
 for centuries the common law existed in a kind of perpetual, institutional debate w/ other laws: Court of Equity
came to exist b/c of common law limitation – p.257
 during the 16th – 19th centuries all of the courts merge into common law (equity, ecclesiastical, etc.) p.258
WESTERN LAW AND THE WORLD
 Western expansion has come about through three techniques/concepts:
1) physical presence of western settles, private non-governmental means of expansion
a. when western settlement occurred in a previously settled area the existing laws remained in
force – the English left existing laws for old people, new laws for new people; French
allowed the existing people to opt for the new law – p.260
2) concept of the state – internal (immigrants) and external (imperialism) – p.262
3) human rights – inextricably bound up within the western tradition & only exist within it – p.265
WESTERN LAW AND CORRUPTION
 doctrinal corruption of racism has been marginalized in legal though
 judges who once bought their positions or collected fees from litigants have now been assured means of
financial security
 law can do much to prevent corruption in non-legal institutions if legal institutions remain free from corruption
 in western countries problems are:
Fall 2007 Muniz-Fratecelli Foundations Summary
o maintaining the underlying ethic of legal professions, of other institutions & of having the legal
professions (judges and lawyers) control the breakdowns – p.267
o in Europe civil and common law profession limited the movements of their participants
 exportation of western law beyond its host jurisdictions has resulted in corruption of massive proportions –
there is no positive phenomenon of positive obedience to positive law – p.269
Harold Berman, Law and Revolution II, pp. 270-302
Transformation of English Legal Science
 Late 17th and early to mid 18th centuries English legal science underwent changes in the basic principles by which
it operated.
 Emphasis on the historicity of English law, the normative character of its historical dev’t over centuries was
manifested in new ways of systemizing it
 Methodological manifestations of the historical jurisprudence included
o Emergence of precedent
o Historical forms of action turned into modern remedies ex: protection of rights of property, obligations
of k, tort etc.
o Independence of the jury as trier of law
o Rights of accused in criminal trials
o Adversary system of presenting evidence
 Two kinds of systems for conducting business in a court of law. Inquisitorial system- its about
inquiry, judge who sits and investigates, the judge does the interviewing of witnesses etc.
Adversarial system- truth doesn’t come out by inquisition, but by lawyers going back and forth
trying to get their truth to be believed. Lead to more vigorous examination, almost all of this is
done orally. In Coke’s time it was an inquisitorial system which changed to adversarial.
o New criteria of proof in civil and criminal cases
o New legal literature, modern legal treatises
o Legal fictions
 These were elements of a legal method in the technical sense, and elements of a legal science in a theoretical
sense
 Law as a legal science may refer not only to a body of knowledge about law generated by legal scholars, but also
to a body of knowledge generated by the law itself, defining its functions and the way it operates.
 Idea that unlike natural sciences, but much like other social sciences (especially like the science of language),
those who make, apply, practice or administer law themselves articulate the nature of those activities, and their
articulations are an essential part of the science itself. Pg. 271,272
 William Blackstone 1753 initiated first English law course taught at English university
o Study of law as necessarily containing both internal and external components.
Emergence of the Modern Doctrine of Precedent
 Casuistry was part of the contemporary systems of canon law and roman law but it flourished in the English
royal courts
 Casuistry does not treat cases as authoritative precedents but as examples of the application of principles and
rules of law. Examples that could or could not be used in analogous cases.
 In no legal system in the West prior to the 17th century did judicial decisions have normative force beyond the
parties in a given case, they were not seen as sources of law. Pg. 273
 England 1290-1535 books called Year Books (law students reports of judicial sessions they attended) referred to
previous cases. Especially in procedural matters, a series of decisions were sometimes used as evidence of the
existence of the custom of judges (mos judiciorum). (These customs would later be known as precedent). At this
time they were not binding.
 Following these Year Books report began to be written. First recorded use of term precedent was in 1557
 Doctrine of precedent- that judicial decisions are an authoritative source of law binding on courts in analogous
cases. Pg. 274
Fall 2007 Muniz-Fratecelli Foundations Summary
o This necessitates differentiating b/w statements the judge makes that are necessary to the decision and
those that are not.
o The reasons that are necessary to a decision can constitute the legal principle(s) for which the case
‘stands’
o Whatever is not necessary to the decision (other stuff that is said) is ‘dictum’ and is not binding on
courts in later analogous cases.
o The holdings (reasons that are essential to an explanation of the decision in a case) constitute rules of
law that are binding
 1673 Chief Justice Vaughan of the Court of Common Pleas- if the judgment would have still been as well given
absent that bit, then it would be no more than gratis dictum.
 Matthew Hale- decisions of courts of justice do not ‘make a law’ but they have great weight and authority in
expounding, and declaring the law. Hale emphasizes aspect of consistency of decisions in analogous cases over
time. Line of judicial decisions applying a legal principle or rule to fact situations that are similar over time is
‘evidence’ to Hale of the existence and validity of this rule. Pg. 274
 Declaratory theory- Judges do not “make” laws, they “find” and “declare” them.
 Gerald Postema- Traditionary doctrine of precedent in late 17th and early 18th centuries rests on:
o A sense of the historical appropriateness of the precedent and of the body of law as a whole,
o And the belief that component decisions are the products of a disciplined process of reasoning and
reflection on common experience.
 Precedent as linked to custom, and reasonableness.
 Diff b/w precedent and stare decisis (which emerged in 19th century). Stare decisis is a strict doctrine under
which the holding of a particular case is as binding on a court in a later similar case. A product of the 19th century
mind.
 Precedent as more connected to idea of mos judiciorum custom of judges. A line of decisions, not just one
decision, that cannot be overturned without very strong reasons.
 Casuistry of English common law transformed to precedent in late 17th early 18th century.
Transformation of the Forms of Action
 Early system of civil remedies based on forms of action was transformed into a system of substantive civil law in
which forms of action were revised to correspond to general categories of property, contract, tort, and unjust
enrichment. Pg. 276
 These diff forms of actions were commenced by a royal writ issued to local royal sheriffs ordering them to have
the defendant before the judges of Common Pleas or the Kings Bench to answer the charges stated in the writ.
 14th and 15th centuries very few new writs were issued. Important one that was added was called trepass on the
case. It gave legal remedy for certain types of harm to persons or property caused ‘indirectly’ and also for
certain types of harm caused by failure to perform an act which the defendant had specially undertaken to
perform (special assumpsit)
 Writs were narrowly defined and highly formal system of civil remedies. You had to categorize your complaint
under the right writ or the case would be tossed.
 Because of the narrowness of the older royal courts (formulary procedure), Tudor monarchs began to establish
prerogative courts to handle new types of civil cases. The newer “high courts” created in the 16th century by
royal prerogative included the renamed High Court of Chancery, High Court of Admiralty, ecclesiastical courts
etc.
 They had their own kind of legal reasoning
 The Chancellors equity was not only a diff body of rules but also a diff kind of legal reasoning.
 There was a common English legal tradition but within each of those legal traditions there were plural, albeit
interrelated legal systems with plural legal methods and theories. Pg. 277
o Plurality of dev’t of common law
 Suppression of prerogative courts by Long Parliament in 1640’s and eventual supremacy of common law.
Common law courts took over much of civil and criminal jurisdiction from their rivals.
Fall 2007 Muniz-Fratecelli Foundations Summary
 A decision had to be made. Writs had to be either abandoned, kept to just what they had dealt with in the past,
or expanded. The system of writs was expanded (to encompass things that previously could only be dealt with in
rival courts ) as this fit in best with belief in historicity of English law and the traditonary doctrine of precedent.
o Those decisions were there and so they had to be used.
Use of legal fictions
 In some instances forms of action were transformed by use of legal fictions. Introduced in English common law
in late 17th, 18th centuries.
 Ex: that a corporation is a “person” and thus can sue and be sued, that a child who comes onto property
uninvited and is injured is an invitee and thus has rights that a trespasser does not have.
 Legal fictions are not intended to deceive, they are not to be taken as true in fact. They are true in another
sense: true in law.
 Legal fictions were a way of applying to new rules procedural and substantive law embodied in older rules. New
situations could be converted into the familiar terms of the past.
 Highlighted English common laws focus on tradition. Pg. 280
Expansion of Forms of Action to Cover the Major Types of Civil Obligations
 Late 17th early 18th centuries common law courts expanded forms of action to cover the three major sources of
civil obligations that were identified in the western jus commune at that time; obligations arising from breach of
k, from wrongful conduct (delict, tort), and from unjust enrichment.
 Unified the law of contracts.
 Separation of k and tort. In contract idea of absolute liability despite impossibility of performance was
established in Paradine v. Jane (decided by Kings Bench 1647). In tort this could be a valid defense.
 Trespass- directly causing harm trespass on the case- indirectly causing harm
 Unjust enrichment came from roman law idea
 Idea of quasi contract (as if there were a contract) also came from Roman law.
 An action “in quasi-contract” quasi ex-contractu, presupposes that there is in fact no k, express or implied but
there is liability based on some other source. A source related to k’ual liability in some fictitious “as if” way.
 English courts would imply in law a k’ual relationship in cases of general assumpsit where no k’ual relationship
existed
 This and unjust enrichment may be explained as a reflection of both puritan morality and mercantile economics.
Transformation of Civil and Criminal Procedure
 Initially English common law did not have judicial hearing in civil and criminal matters. The jury basically decided
everything, gathered evidence etc. and presented it to the royal judges on circuit. These were called active or
self-informing juries.
 Gradually evidence began to be presented to juries in judicial proceedings. (13th century). By early 17th century
jurors usually did not investigate the facts of the case before the trial but it was not until 18th century that they
were forbidden to consider personal knowledge gained out of court. Pg. 285
 This transformation from active jury to passive jury occurred before the English revolution and mostly under
Tudor monarchy. Part of a larger movement toward rationalization
 Principal changes that occurred in lat 17th and early 18th centuries following the triumph of common law courts
over their rivals the prerogative courts were:
o Establishment of independence of the jury as trier of both fact and law
 1640’s and 1660’s judges would coerce jurors to side with them. Bushell case- he was locked up.
Obtained a writ of habeas corpus and following a trial it was found that jurors cannot be locked
up for the verdicts even if they contradict what the judge directed
o Establishment of substantial procedural rights of the accused in criminal trials
 Right to counsel, to know what you are being accused of, time to prepare a proper defense,
right to have witnesses testify under oath
Fall 2007 Muniz-Fratecelli Foundations Summary
 These rights were given first only to those being accused of treason (political prisoners) by the
(Treason Trails Act 1696) but were then extended to all felonies
o Introduction of the adversary system of presentation of evidence
o Development of new criteria for proof of guilt in criminal cases and of liability in civil cases.
The emergence of scientific legal treatises
 Matthew Hale’s “The Analysis of Law” was the first book which purported to present an analysis of the entire
body of the English common law.
 Distinctive feature of Hale’s analytical method was the implicit rejection of the sharp distinction drawn in the
European literature on the jus commune b/w public and private law. Hale treated legal powers of “bodies
politic” under the law of artificial persons
 Stated that the king is in his political capacity a corporation sole. Placed governments within and not above the
legal order. Detailed limitations of the rights, power, prerogatives, and jurisdictions of the Crown and
subordinate magistrates incl Parliament and the judiciary. Pg. 296
 Unlike jus commune Hale focused on only one of the legal systems that had prevailed in England in the earlier
period namely the law applicable in the Royal courts of Common pleas, King’s bench, and Exchequer chamber.
Didn’t look very closely at mercantile, ecclesiastical, and maritime law. Excluded equity law.
Selections from Coke, Reports pp. 157-60, 264-83, 478-81
JENTLEMAN’S CASE
 in this opinion the judges of the King’s Bench consider when various officials are Judges, who are appointed by
writ, by the king, or by statute, to hear certain causes of action, or suiters seeking a writ of right, to which they
are automatically entitled
 King cannot abolish courts of the common law but may create new courts and appoints Judges to courts, but
once he has made the appt., the judge ought to determine matters in the court – p.157
DR. BONHAM’S CASE
 Coke’s most famous case and report
 College of Physicians held a concession under an act of Parliament which gave it the sole right to license anyone
who would practice medicine in London
o Thomas Bonham was a medical doctor educated at U. of Cambridge and was refused a license by the
College  he continued to practice
o the College fined him didn’t pay fine College imprisoned Bonham
o Bonham sued for false imprisonment
 Coke held that the College didn’t have the power to fine, nor could they be a judge in a case to which they were
party
 uses instances of precedent and other statutes – p.264
PROHIBITIONS del ROY
 Coke’s notes of a conference which informed the King that he did not have the privilege to personally decide a
Case at Law; the Law also protects the King – p.478
Gordley and von Mehren, The Transformation of English Legal Science pp. 234-246




in modern civil codes, much of tort law depends on short, general provisions that say that a person is liable for
harm that he causes through his fault
French Civil Code: no explanation of harm; defendant is liable through intent or negligence – p.234
German Civil Code: must intentionally or negligently unlawfully hurt someone ; also drafters believed that there
were certain rights for which you didn’t need recovery such as privacy or dignity – p.235
Roman Civil Code: had little to say about torts or contracts in general  just particular wrongs for particular
contracts or torts
Fall 2007 Muniz-Fratecelli Foundations Summary
o two of the torts became the basis for later continental law, one was an action for iniuria (injury) – this
action was so generalized from the Middle Ages – 18th c. that it provided relief for almost any act
including damage to reputation – p.236
o and the other was action under lex Aquilia – 2 basic requirements: defendant at fault had to be liable
(caused harm intentionally or negligently) and the plaintiff could recover only if he suffered certain
types of harm  could only recover for loss of physical objects not damage to body itself
 beginning w/ the Middle Ages more types of recovery was allowed and by the 17th c. if a person
was killed than the wife & children could recover for loss of support; pain & suffering as well –
p.237
o Another change was that jurists had begun to theorize about the general principles of tort law – p.238
o In principle the defendant should be liable whenever, through his own fault, he deprived the plaintiff of
anything that belonged to him as a matter of justice
delict: “an act by which a person through intent or malice causes a damage or injury to another” –p.239
quasi-delict: “an act by which a person without malice but by inexcusable imprudence causes an injury to another” –
Pothier
 Common Law: lawyers ask whether the defendant committed a particular tort for which the courts give relief
o one of these is the tort of “negligence”; a defendant is liable if his negligence harmed the person or
property of the plaintiff  recognized as a distinct tort in the 19th century
o prior to this tort, there was “trespass” which was a family of actions: - p.240
 Trespass in assault & battery – defendant liable even if there was no harm;
 liability for assault  defendant must have done something that led the plaintiff to
believe he may imminently be the victim of a battery
 liability for battery  must make contact w/ the body of the plaintiff or something
closely associated w/ the body such as a cane or a glass that the plaintiff is holding
 False Imprisonment – defendant is liable if he confined the plaintiff – p. 241
 Trespass quare clausum fregit – known as trespass to land; defendant must enter, or cause
something to enter, land in the plaintiff’s possession  no damage necessary
 Trespass de bonis asportatis – known as trespass to chattel; defendant must physically interfere
w/ plaintiff’s goods
 William Blackstone taught the first university courses in common law; one of the first to write a common law
treatise – p.242 His innovations:
o Blackstone said that certain of the traditional forms of action constituted a law of torts
o he said that the two principal grounds on which the defendant might be liable were intent & negligence
o he distinguished actions that protected personal property, real property, personal security of individuals
against injury – p.243
 all writers tried to identify traditional forms of action w/ the protection of distinct types of interests or the
prevention of distinct types of harm
 all writers also tried to formulate a list of the elements that the plaintiff must establish to recover under each of
the forms of action – p.243
 problem for treatise writers was to find a formula that could fit decisions that had not been made by a formula
but by looking for such resemblances further problem is sometimes cases did not have interests worth
protection
 unless the authors were willing to challenge the cases, had limited choice: could devise a formula that fit cases &
then invent some reason why it corresponded only roughly to an interest worth protecting; or could redescribe
the interest in question to make it fit the formula, or they could ignore it –p.245
 in the case where no appropriate tort exists, the court must either deny relief, stretch the boundaries of some
existing tort or invent a new tort – p.246
CLASS NOTES
- difference b/w artificial and regular reason
- what does Coke see as the province of the judge?
Fall 2007 Muniz-Fratecelli Foundations Summary
- Glendon coursebook: different ways of comparing  historical (this institution arose at this moment
and influenced this etc.) or there is the internal basis of comparison (specific ex. such as a torts case)
- who is Portalis (head of the commission that drafted the Civil Code)?

a writ is an authorization that the king would give to a specific agent (usually a sheriff) in the realm to
carry out a particular order
 jus commune in common law: there are common laws in general; dealt w/ foreigners & romans;
incorporated into bodies of legal knowledge  code of Justinian which seeps into everyday life
o under-appreciated source of law is the Merchant’s Law: people trading
 jus commune was common to Europe in the way that Latin was common to Europe; same way that
English is common language for business now; commoners designed the common pleas, the common
courts which became the creators of common law of England
 case of Dr. Bonham – files a writ of wrong imprisonment; this was his only recourse – could not file a
case against the monopoly that the association had on the medical profession
 the writ system limits the influence of the courts of England  courts of common pleas are not open to
reasoning of judicial fairness ( have to create legal fictions)
 Henry II 1183 – writs are a way for the king to control what goes on  no inherent limit in the
beginning; only later on was a limit put in place to defuse the power of the courts
o Equity Court can’t do anything if there is a writ for it; it also deals w/ cases that don’t fall into the
applicable writs
 one theme – a lot of legal institutions at play at any given time w/ institutional interest
 law is an independent discipline: when you think like a common law lawyer in the 17th and 18th century
you have the basic principles of right in the back of your mind
 a judge, Coke would say, should think if somebody else would be in the same circumstances, how would
we evaluate them?
 hearsay – concept that comes from common law; fundamentally says that if a witness is testifying in
court, they can only testify to what they know firsthand
 common law and civil law lawyers both say that they have the better law
 Berman has a hidden agenda in his writings (he is a sovietologist)
 fundamental changes of method b/w the 18th & 19th centuries:
1) modern doctrine of precedent – start by looking at precedent as persuasive, judge has more
influence than philosophy of for ex. Aristotle; this slowly turns into judgements that are binding for
the court  is there a difference b/w CVL and CL – Portalis talks about a notion of uninterrupted
line of cases
a. in CL, a single case can decide precedent
2) forms of action
3) independence of the jury
4) adversarial system
5) new criteria for proof of guilt and liability
6) rights of the accused
 legal fiction – if the case doesn’t fit into any of the remedies, than you start thinking of analogies; try to
work through the problem using an inductive process, starting w/ the cases that you have
 in general there can be two kinds of systems for conducting law: inquisitorial (judge sits and investigates
– analysis of the dossier) and adversarial (truth comes out in the courtroom – by two lawyers from
opposing sides fighting; almost the whole process is oral)
Fall 2007 Muniz-Fratecelli Foundations Summary
o in Coke’s time the process was inquisitorial
 Hale develops the notion of CL in the way of legal science, but there is still no notion of legal precedent
William Tetley – Mixed Jurisdictions: Common Law v. Civil Law (Codified and Uncodified)

to understand civil law one must realize that Scotland and South Africa, for example, received Roman law
and have retained it without benefit of codification – p.686
CVL:
 Received in continental Europe by Ancient Rome. Retained by codification. Latin America and Egypt imitated
French civil code. South Africa & Scotland ->no codification
 1804 French code: intended “revolutionary” reflecting achievements of France. Rational, universal, commonsense law
 Code imposed by army on territories (Netherlands, Belgium, Italy, German principalities...)
 After downfall of Emperor, code’s prestige -> adoption of similar codifications
 4 periods of Scots law:
o Feudal period (1018 battle establishing boundaries to 1329 death of King Robert the Bruce).
 Scotland’s establishment as separate kingdom
 Feudalism introduced by England
 Roman catholic canon law
 Sherrifs administered justice in name of king
 Custom law
o Dark age (til 1532: Ct of Session)
 Political stife, economic difficulty, weak government
 “Auld Alliance” b/w Scotland & France (p.8/43)
 Became civilian system like continental Eur
 Scottish Parliament, Court of Session
o Roman period (til Napoleonic Wars -> reception of Roman Law)
 Fruit of Renaissance and reawakening of classical learning
 Lawyers trained abroad return with knowledge, structured thinking
 Civilian rules incorporated into the corpus of Scots law.
 The great “institutional writings”. Imp as source of law for judges
 1560: Scottish Reformation -> removal of Roman Catholic Church cts
 1617: General Register of Sasines. 1672: High Ct of Justiciary
 1707: Treaty of Union->Scottish Parliament eliminated (English law replaces Roman law as most
influential external)
 1745: Jacobite Rebellion
 Roman law influence declined. Own jurisprudence. Less law students go abroad
 1707: gradual increase of CML into Scottish legal system
o 1800: Modern period (influence of English law, given authority in 1707. House of Lords as final ct of
appeal in civil matters)
 CML influence, especially in commerce, labour and admin
 Judicial precedent accepted
 1973: EU influence
Fall 2007 Muniz-Fratecelli Foundations Summary
 CVL present (esp in private law): terminology, deductive method, Latin
 Sources: Feudal, Roman, Canon, English CM laws, statutes
South Africa: p.692
 CV, CM. African tribal customary laws
 1652: Dutch settlers bring “Roman-Dutch law” to the Cape of Good Hope
 Cts pay marked attention to doctrinal writings, esp of Dutch authors
 1815: Cape transferred to Britain (after occupations). Roman-Dutch law continues to develop
 Later 19th C: English law imported by statute
 1910: Union of South Africa-> English and Roman-Dutch law fused into single system
 1959-1971: period of purism-> effort to purify R-D law from English accretions
 Currently: since there is a lack of South African precedent, Roman-Dutch and English sources are given
approximately equal weight, in a kind of pragmatism
o recognition of African customary laws
Quebec:
 Quebec (part of New France b4 ceded to Great Britainin 1763) had private law governed by Coutume de Paris,
imposed by Louis XIV
 Coutume (about immoveable property) supplemented by Roman law & Canon Law
 Royal ordinances were 3rd source of private law
 Arrêts de règlements : agriculture, health, fire prevention…
 1763: Treaty of Paris -> confusion over applicable law. New Englsih cts boycotted
 1774 Westminster: Qc Act-> CVL for property and CV Rights and imposed English criminal law & principle of
freedom of testation
 1791: Constitution Act -> Qc divided in lower (qc) and upper CND (Ontario) and established English CML in upper
CND
 1804: Act of Union-> reunited as province of CND
o 1841: Land registration
o 1854: seigniorial tenure abolished
o CVL in territories granted free and common soccage since 1774
 1857: formation of commission responding to pressure for codification
 1866: CC of Lower CND
 1867: Qc becomes part of Dominion of CND
 Qc code reflected conservative, family-oriented rural values & economic liberalism of commercial elites in Mtl.
Blending of ancien droit with rational and liberal enlightenment
 1866 onwards: some amendments (1964: remove incapacities of married women)
 1966: Civil Code revision office, height of quiet revolution
 1991: new code, came into force 1994
 Code: full recognition of human person & rights -> central to private law
 Code = ius commune of Qc
 Civilian codification with impact of certain English principles
Louisiana
 1712: charters issued to merchant co on French Edicts, Custom of Paris
 1731: territory became royal colony, laws remain
Fall 2007 Muniz-Fratecelli Foundations Summary
 1763: session to Spain, 1769: Spanish laws replace French ones
 1800: retrocession to France, Spanish laws
 1803: US takes possession, pressure to impose CML
 2-man committee to prepare compilation of CVL for “territory of Orleans” (Livingston)
 1808: Louisiana Civil Code
o Revolutionary ideas of France
o 70% French Civil sources, rest Spanish law
 1825: new code created (like French) in response of confusion
 1870: 3rd code (only Eng), amendments for abolition of slavery after American Civil War
 1976: Louisiana State Law Institute
Egypt:











Roman law before arrival of Islam in 641 AD
Islamic conquest->Islamic Sharia law (jurisprudence in Koran, Sunna, Ijma & other)
Sharia cts: civil, criminal, family. Non-Moslems: own religiously-based family law systems
1805: Mohammed Ali ruler -> influence of Eur law, esp French law
1856: 14 judicial councils for non-Moslem family law
1875: mixed cts for mixed codes (for foreigners): civil, commercial, penal, procedural
o Codes (eg. Civil code 1875) modelled after French codes
1883: national cts for French-inspired national codes (for citizens)
o Sharia cts: family matters
Demands for simplification and rationalization
1949: mixed cts abolished, 1955: Sharia cts abolished
o Jurisdiction transferred to national cts => ordinary cts
o Mixed codes replaced by national codes for foreigners and citizens
o 1948: Egyptian Civil Code
o 1929: Personal Status Law -> family law by religion
1971: Egyptian Constitution (amended 1980) -> Islamic Sharia law = main source of legislation
Moslem and civilian systems co-exist
Reid, “The idea of mixed legal systems” 78 Tulane Law Review 5-27
Idea of mixed legal systems:
- At first: occasional term of comparative law
- later: means for resisting assimilation with CML
- now: model for harmonization of CVL and CML and source of comparison
Mixed jurisdictions:
- often products of failed colonialism
- were for export only, for Europeans
- mostly ignorant/indifferent to other mixed jurisdictions
- experiment of legal science, w/o results
- born out of failure of classification (1900: CML in British Empire and US, and everywhere else was CVL. Small # of
jurisdictions didn’t fit distinction)
- 1899: Juridical Review (Scottish legal journal) Walton
- 1915: Michigan law Review “The CVL and the CML –world survey” Warden Lee’
Fall 2007 Muniz-Fratecelli Foundations Summary
- Not widespread knowledge. 1934: proposals for formation of a Scottish legal history society as only combination
of CML and CVL
- 1950s: Smith -> for those who worked in mixed systems, unimagined opportunities from discovery of kindred
jurisdictions
- In South Africa, Qc and Louisiana, Smith : eg for Scottland (CVL under threat of assimilation) and source of
practical help
- 1960: Scottish Uni Law Institute established for commissioning and publishing on private and public law
- Smith: legal nationalism -> Scots law avoids fusion with England & legal preference of CVL (rational, universal)
over CML (immature, ad hoc)
- CML lawyers says its superior nature allows CVL to survive in mixed systems
- Vs. theory of CML survival through mandate, colonialism, conquest or cession
- Smith = one-man band on mixed systems
- Group of mixed systems is most attractive to its weaker member. Scotland needed mixed systems, vice-versa
less clear
- 1960s: Smith had no following, 1972: left academic life
Rediscovery:
- Today popular
- 2001: “Mixed jurisdictions worldwide” Palmer & other books
- 4 causes (chance aside):
o Growing internationalization of law & interest in foreign law by non-comparatists (valued more for
doctrinal solutions to local pbs)
o European Union: combines CVL and CML
o Re-emergence of South Africa after 1993 political changes
o Founded on national self-discovery and self-confidence (vs fear for future of CVL tradition)
 Mixed legal system mvt not primarily nationalist
- Interest depends on:
o Concern with development of Eur’an private law
o Comparative community
o Within mixed systems
- Mixed = debate, unstable?
o Today have achieved equilibrium
o No pressure for change
- 2 level of mixedness:
o Substantive rules (civilian) and methodology (CML) by which they are applied. “Jewel in a brooch,”
glitters in England-made setting – p.21
 Methodology: not wholly CML. Law is codified. Focus on rights rather than remedies. – p.21
 Rules: public law -> CML tradition. Private law -> CVL (Palmer: private-law biases)
- Mixture of sources and time in the systems (most have modern CML with varying antiquity CVL)
- Result more imp than recognition (tentative remarks):
o Property law resolutely civilian
o Exclusively commercial law ->CML
o Delict & negligence -> CML influenced by CVL
o Unjust enrichment: impervious to CML til recently
o Contract: 3rd way (neither CVL not CML)
 Not new: Past 10 years, 3 attempts to produce codes from both Eur traditions
Fall 2007 Muniz-Fratecelli Foundations Summary
- Mixed systems work by coexistence rather than by creation. Selection, combination ad rationalization of existing
rules from various sources - p.26
- Creation possible: “autonomous law” -> only when constituent components are incompatible
o Mainly in property law:
 Not invariabley. Eg. Scottish real burden and English freehold covenant, both accepted by House
of Lords.
Class Notes
- when France made colonies its attempt was to civilize and bring universalism to the country via its legal
system
- in every one of these situations where civil law is enmeshed in common law, than the procedural institutions
that administer the law/e.x. Puerto Rican code of civil procedure are the California code of procedure also
includes criminal
- South Africa is a mixed jurisdiction because English Law was imported by statute
Glenn - CHAPTER 10 – Reconciling Legal Traditions: Sustainable Diversity in Law
-
while legal traditions contain large amounts of info relating to human conduct, they also contain second-order
info about themselves and their relations with other traditions – p.344
The Multiplicity of Traditions

recognition of any legal tradition involves choice: deciding the defining elements, evaluating its importance and
the extent of adherence to it, determining its origins
Internal Traditions
-
-
some very old, long-recognized traditions exist within major traditions  endless, particular, chthonic legal
traditions e.x. Aztec, Hanafi (Islamic), sephardic (Talmudic), Mitakshara (Hindu)
o they are all internal to one of the 7 traditions examined in the book: sometimes supporting, sometimes
opposing the leading primary version
o forms of internal dialogue or argument; have in most cases become indispensable parts of it, providing
correction judged necessary or variation judged unavoidable p.346
there are also ‘young traditions’ which may have been originated but lack the accumulated ‘pastness’ which
allows us to verify their staying power
o these young internal traditions appear most often in traditions which value effort, originality or ijitihad
o e.x. current shi’ite efforts to create a doctrine of the Islamic state
Lateral Traditions
-
further, recognizable traditions that aren’t particular to specific ones but run across many larger traditions
o examples: Casuistry has roots in roman, Talmudic, Islamic and common laws
 notions of inter-generational equity present in chtonic, hindu and asian law
 contemporaneous notions of equity are explicit in civil, common, Talmudic and Islamic law
 tradition of constructive rationality (ijitihad) which is marked in western law and the object of
debate in Islamic law
 Fundamentalism is a lateral tradition, in the name of particular gods, principles, texts, etc.
 traditions of professional role: adjudicator or counsel
 also undefended, but practised traditions of racism, of crime, antagonism, etc. p.347
Fall 2007 Muniz-Fratecelli Foundations Summary
- Two other lateral traditions:
o universalism or universalizing: characterized by an ineluctable pressure to spread and solidify particular
teachings, which themselves are formulated or capable of being formulated in universal terms
o tradition of tolerance of other religions: co-exists in constant tension with universalism
Reconciling Traditions
- the nature of the normativity of each tradition is an essential feature of its potential universality
The Normativity of Tradition
- Western theory of tradition teaches that all tradition is normative  it provides a model, drawn from the past,
as to how one should act
- chthonic law doesn’t appear to regulate much, yet in proscribing all conduct incompatible with a recycling
cosmos its normativity is unquestionable – p.348
- Talmudic and Islamic law regulate most of life; normative in all directions
- civil and common law are laws of liberty; both have existed as optional, suppletive forms of social regulation,
allowing some form of escape from chthonic patterns  in modern times would deny to some extent
normativity of their own pasts
- hindu law allows for lots of choice, but no one who is hindu would escape a form of law recognized as hindu
- asian tradition rejects much formal law, but does so in favour of another type of normativity (one anchored
informally in the past)
- indecision of relativism (all points of view are equally valid) is a problem EXTERNAL to these traditions  they
don’t acknowledge it
o if one refuses universalism, in the name of some form of tolerance, how does one avoid the indecision of
relativism?
Complex Traditions
-
the legal traditions which have been examined all contain sub-traditions: either purely internal or lateral ones
o they nest within one another (like Russian dolls) so that the largest is composed of a series of
supporting, complementing, even recalcitrant, sub-traditions
o thus large and major traditions are thus so because of their complexity – p.349
- major legal traditions are complex b/c they incorporate multiple internal & lateral traditions that may not be
consistent w/ themselves or the overall tradition that they are in
o they reach this point b/c of their ability to deal w/ diversity, contradiction & demands for what is usually
know as change
Examples:
o Chthonic traditions allows great diversity within itself, giving quiet approval to all chthonic ways and
even change of them, on condition of ongoing respect for the natural world
o Talmudic law throughout the debates within the tradition has a constant re-affirmation of the larger
synthesis of the Perfect Author
o civil law has always known multiple and contradictory versions of itself
o Islam has its ikhtilaf – doctrine of diversity
o common law co-opted local diversity, leaving juries to their own devices then eventually integrated,
ecclesiastical, Admiralty and Equity courts and case law before going on to its present, trans-oceanic
diversity
o Hindu law gives pride of place to local law  views itself b/c of Brahman as an illustration of the
fundamental unity of the world – p.350
o Asian normativity knows the ‘middle way’ of Buddhism
Bivalence and Multivalence
-
in formal language, it is always A or not A  never A and not A (inconsistency)
Fall 2007 Muniz-Fratecelli Foundations Summary
o bivalent thought thus implies clear boundaries between distinct and separate concepts , and prevents
mixing and confusion over the boundaries, once they are created. – p.351
- challenge of multivalence, however, is a very large one. It asserts that all categories are vague and that all
efforts of separation are arbitrary and artificial
- bivalent logic is behind much of the construction of the western world – p.352
- Casuistic legal traditions consequently have the potential to become major and complex legal traditions, and
some of them have made this transition, using their own casuistry to move above and beyond competing,
internal sub-traditions – p.353
o common and civil law have placed less emphasis on casuistry in their internal workings
 but in their full dimensions modern civil and common laws are necessarily complex:
 must reconcile different rules, different solutions within a single, transnational tradition
 what becomes important is casuistry, particularity, greater and more detailed info
Beyond Tolerance
-
complexity of major legal traditions: don’t just tolerate, they accept, in spited of difference
o genuinely multivalent in refusing to categorically condemn and exclude
o they construct a middle ground for the tradition, one which allows ongoing reconciliation of its
inconsistent poles, themselves taken as exclusive and categorical by those we designate as
fundamentalists (of all traditions) – p. 354
o are complex b/c of their ability to overcome arguments of incommensurability
 no place for the indecision of relativism b/c elements of tradition are in constant dialough with
one another
Reconciling Complex Traditions
To what extent does the nature of a complex legal tradition speak to the relations b/w complex traditions? – p. 355
1) their identities are not mutually exclusive ones
2) complexity and interdependence is not a phenomenon which is simply internal to complex traditions
a. they necessarily characterize the relations between complex traditions
- fundamentalists seek to elevate one truth, or one tradition, to exclusive status, and seek to impose it
o may thus act in an imperial or aggressive or violent manner (does not reflect their whole tradition)
-
Complex traditions are in their nature, and in their leading versions, non-universal & non-universalizing – p. 356
Sustaining Diversity
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-
-
argument that if diversity on a large scale is compatible with all major legal traditions there might not be a point
to sustain it since it would just happen, in spite of anything that we did:
o first response – case for natural. harmonious diversity might be overcome, if enough people decide to
act on contrary assumptions – p.358
o second response (more realistic) – should go with the flow; all efforts of the universalizers will not be
able to disrupt the sustainable diversity in law
Sustaining diversity means accepting the major, complex, legal traditions of the world (all of them). It means
seeing them as mutually interdependent, such that the loss of any of them would be a loss to all the others,
which would then lose a major source of support, or at least of loss to all the others, which would then lose a
major source of support, or at least of self-interrogation.
o means seeing all traditions as one’s own, in some measure, since each is dependent on the others
o means seeing dominance, and efforts to obtain dominance, as a form of corruption of all major legal
traditions, which exist as varying forms of equilibrium – p.359
recognition and acceptance of the diverse legal traditions of the world has implications for the identities which
people in the world give themselves
Fall 2007 Muniz-Fratecelli Foundations Summary
o identity then becomes less clear than it was before (partial) adherence to another tradition
o identity is fuzzier, more multivalent  more loyalties claiming your attention
The Ways of Diversity
-
-
-
Two more valuable sources of info:
o they are complex legal traditions b/c they succeed in reconciling different theoretical views in the cadre
of ongoing, specific dispute resolution
o comes from what western lawyers call facts  idea that if you know enough of what went on then a
solution will eventually suggest itself – p.360
 increasing information means reducing conflict
ongoing international debate about whether parties to contracts (usually international ones) are free to choose
the law applicable to their contract: some say there should be party choice, others that it is where binding effect
is given
o these two opposing views where given middle ground in the Rome Convention which is an example of a
multivalent international convention – p.361
Multivalence also appears useful in thinking about contemporary, complex societies, where multiple claims of
(legal) recognition are made on behalf of different groups within states, often relying on some form of
international or regional guarantee of minority rights – p.364
Oquendo – Latin American Law


Puerto Rico part of U.S. 1898 (Treaty of Paris)
1917 Jones Act gave U.S. citizenship to Puerto Ricans; but they don’t have the same political and economic rights
as those from the mainland: no right to vote for president, can’t send representatives to Congress and do not
have the same entitlement to benefits; but they don’t pay federal income taxes p.449
 2006, 4 million Puerto Ricans living in Puerto Rico and 3 million living in the US
 soon after occupation, U.S. capital flowed in and ravaged the local economy (sugar cane growers)  first half of
20th c. illiteracy, poverty and unemployment rates high
 1952 Puerto Ricans approved and obtained the required endorsement from U.S. congress for their Constitution
o can elect governor and other members of a bicameral (composed of two bodies) legislature
o governor w/ consent of the Puerto Rican Senate designates judges of the insular tribunals
 U.S. federal law has hierarchical priority over local law (as it does in all states)
 federal U.S Court sits in Puerto Rico w/ jurisdiction principally over cases involving federal law or disputes
between Puerto Ricans & residents of the states p.450
 unemployment rate from 1952 until now is between 15% and 20%
 Constitution declares itself to be a free associate state (Estado Libre Asociado) which is false because P.R. is not
free, it does not enact its own supreme laws, nor associate, b/c it is subject to the unilateral dictates of the U.S.,
and not clearly a state of the U.S. federation p. 451
 1998: vote on what Puerto Ricans think should be their role (46% statehood)
 constitution is modeled on law principles from the U.S. and Supreme Court has imposed a substantial number of
federal constitutional requirements in the field of criminal law p.453
 Puerto Rican private law has a civil code covering areas such as torts, property, contracts, trusts and estates, and
family law  1889 Spanish Civil Code remains in force w/ considerable amendments and alterations
 while U.S. tried to dismantle the prevailing Spanish legal system, the Puerto Ricans tried to reverse this process
and in 1979 in a decision in Valle v. American International Insurance Co. the Supreme Court reversed all prior
case law interpreting the Code on the bases of U.S. legal methods; authorizing use of common-law materials
only for comparative purposes p.454
RECEPTION AND REJECTION OF COMMON LAW IN PUERTO RICO
1) reception of North American law 1898-1914
2) its advance and consolidation 1915-1943
3) the search for a new direction, 1941-1952
Fall 2007 Muniz-Fratecelli Foundations Summary
4) the initial revitalization of the civilian tradition 1952-1973
5) intensification of the revitalization of that tradition, 1973 to present p.455
Valle civil law case – turning point in Puerto Rican civil law tradition:
- cars waiting in a line to turn; sixth car plows into them and causes a pile up
- car 2 sues car 3 and loses  courts says that it was the sixth car that caused the damage
- the cases proposes that interpreters of the law focus first and foremost on civil law sources and only
secondarily, on the common law
o it not only overruled the cited cases but also invalidated an enormous number of decisions from the
previous six decades on torts
o takes a Eurocentric approach and does not directly mention any foreign Latin American sources p.460
Alberto O. Bacò
** issue of res ipsa loquitur raised: mere fact of accident having occurred is evidence of negligence
1) first must not normally occur unless another person has been negligent
2) an agent, or instrumentality in the exclusive control of the defendant must have caused the accident
3) the accident must not have occurred due to a voluntary action of the plaintiff
-
court asserts that Rules of Evidence and the Puerto Rican Civil Code provide a solution for such cases & shouldn’t
turn to “superfluous judicial imports” p.483
- negligence in torts can be proven through circumstantial evidence p.484
- bottle of water exploded after he picked up bottles at a warehouse and was transporting them to his truck
- based on the Puerto Rican Civil Code the evidence presented was not sufficient to prove negligence, nor
establish a causal relationship
- concurring judgment  worried about banishment of the res ipsa loquitur doctrine from the legal order; feels
the court failed to take into account the function of the doctrine, the nature of the doctrine in light of the Puerto
Rican law of evidence and the possible equivalents that can be found in legal systems of civil law origins p.467
o tort law has a clear civil law lineage, but law of evidence incorporates almost entirely North American
law
o doctrine is a permissible judicial presumption, but is mistaken for a legal presumption & for vicarious
liability
 judicial presumption: not obliged to make an inference that, series of events from which you are
allowed to draw a deduction (inference)
 legal presumption: a deduction/inference that the law makes you draw from the series of
events
 comparative sources reveal a deductive type of reasoning that leads to prima facie evidence: this incorporates
the notion that, according to experience, certain factual situations typically involve a specific causal link which
leads to a specific outcome
o establishing that the outcome could have come about in a different way is enough to undermine the
prima facie evidence p.469
Liana Fiol Matta Article (sits on highest judiciary in Puerto Rico)
-
-
by 1987 the court consciously tried to emphasize the Hispanic-civilian origins of Puerto Rican law, despite
difficulty caused by the applicability of federal statutes, adoption of American statutes and the need to integrate
American procedural & public law
analysis of 256 documents in files of negligence & contract cases (1988-1990) reveals that preferred source of
law are prior judicial decisions  first choice are decisions of Supreme Court p.473
o use of U.S. case law also significant (never stand alone though)
o many Court opinions seemed to rest on case citations alone in general; legislation was not sufficient
enough, by itself, to sustain authoritative statements about the law
Fall 2007 Muniz-Fratecelli Foundations Summary
o citations of the Spanish Civil Code represented 25% of cases in 1985-1987 p.474
 this number has significantly decreased
- documents use Puerto Rican, civil law, and U.S. sources in same proportions, but: contract documents cite more
secondary sources & prefer civil law sources; negligence documents use secondary sources less & seem to
favour U.S. sources
o Supreme Court and superior court judges prefer civil law sources; lawyers U.S. ones p.745
Anomalies in the study
- greater reliance on legislation in Supreme court/superior court opinions did not mean less reliance on case
citations
- highest correlation b/w U.S. cases and Puerto Rican substantive law, in terms of number of documents, is found
in contract opinions p.476  transculturation doesn’t usually happen in field of contract law
o indicates strong presence of counterdiscursive practices which constantly reaffirm the civil law nature of
contract law
- courts use secondary sources in a great majority of opinions, preferring civil law secondary sources p.477; like to
use double arguments
- lawyers use secondary sources in over half the documents and prefer U.S. sources particularly in negligence
documents; prefer to limit their sources
- in superior courts the Civil Code appears to be the most important legislation of all, even in the area of
negligence p.478
Class Notes
Oquendo reading


congress has unchecked authority over everything that happens in the territory
Puerto Rico is not considered important in the “disaster” of 1898 because it was a garrison town; i.e. always
colonially occupied and of strategic military importance
U.S. Supreme Court
U.S. Court of Appeal
(1st Circuit)
Federal District Court
Supreme Court
Puerto Rico
of
Baco
1) historical (legal tradition); hermeneutic – interpretive
a. telling the court itself and all other inferior courts that you cannot use this principle  cases sent back,
no recourse to the doctrine in the future
2) functional (legal system)
a. general rules of evidence
3) equitable (extra-legal?)
Where do the Majority/Concurring Stand?
Fall 2007 Muniz-Fratecelli Foundations Summary
Glenn - Chapter 3 – A Chthonic Legal Tradition
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most evident feature of a chthonic legal tradition has been its orality
o most obvious & important element of a chthonic legal tradition is that it rejects formality in the
expression of law, though the reasons for this may not be immediately clear. – p.61
insistence on orality related to form & substance
o if no one is allowed to write down the law, no one can enjoy the privileged role of scribe, and no one can
subsequently write large, ongoing commentaries and themselves become sources
o thus described as a repertoire, as opposed to a system
orality and communal nature of the traditio  powerful inducements of consensus
o ideally important info learned by all, w/ help of many & everyone is thus able to assist in the ongoing
process
 unwritten law thus more widely known and profoundly rooted than formal written law
o idealic description since we know that dissent emerged, in irrecuperable form, and entire new traditions
were generated, or created, by people rejecting, in whole or in part, the chthonic world
 Exit was available to all those for whom the tradition was entirely or partially unacceptable –
p.62
oral traditions do not lend themselves to complex institutions thus less danger of pecuniary and institutional
corruption
o but there are common features of things like a council of elders, who, by their assimilation of tradition
over a long period of time, often speak with greater authority
 known as gerontocracy; but may be seen as an expression of a link with past generations
dispute resolution was usually informal, there was also ADR that sometimes existed in form of courts and formal
adjudication – (see footnote 20) p.63
o Aztecs differed w3 a system of permanent judges and formal appeals
o in Africa informal types of arbitration co-existed with more formally established courts
o Saami in northern Europe would have had their court, the Kotakararat – p.64

Chthonic family law is also characterized by informality
o marriage, divorce and adoption are not in a domain of institutional control  publicity & reputation may
in some manner be constitutive of status, but this appears more by way of communal life than by way of
fundamental requirement

living close to the land and in harmony w/ it means limiting technology which could be destructive of natural
harmony.
o no incentive for development of complex machines and now way of accumulating wealth through their
use
o little reason to accumulate personal or movable property
o no reason to accumulate land, or map it (other than to show trails)
Chthonic notions of property are those of chthonic life  human person is not generally elevated to a position
of domination, or dominium over the natural world
however land could be effectively occupied, and western notions of adverse possession or prescriptive
acquisition are suggestive of some form of ownership developing over time, even in chthonic traditions
o this notion has led to an interesting process occurring in the Americas and Australasia whereby the
chthonic peoples are asking the courts to reclassify their land via this western concept of property – p.66
o the evidence the chthonic peoples put forth is that their use of the land consisted of communal or
collective enjoyment, w/ no formal concept of property
 chiefs could allocate land for individual use w/o disruption of the communal holding
 no right of alienation – p.67
crime becomes the responsibility of civil society, in the forms of groups, clans or families



Fall 2007 Muniz-Fratecelli Foundations Summary
o injury to a member was an injury to the group
o injury caused by the member was the responsibility of the group
o usually reparation via negotiation b/w groups & then payment or equivalent punishment  also idea of
blood feud existed
o objective was not to punish, but to restore community







Chthonic law is thus inextricably interwoven w/ all the beliefs of chthonic people & is inevitably, and profoundly,
infused with all those other beliefs – p.69
description of chthonic law tradition:
o legal or adjudicative process completely open
 nothing to keep it from being inundated w/ complaints or procedures
o legislation is mostly invisible
chthonic law had its place and kept its place by the ongoing presence, and vitality, of all else in the chthonic
world
since law has its place, as defined by all else, there are important implications for present human rationality –
p.70
o since present individual is submerged in the past & the wider community  no individual power to
obtain the object of individual will
 there are no rights – law does not protect purely individual interests
o evident in law of the family, law of property and law of crime
o chthonic law will protect you but you have few means of protecting yourself against it
 appearance of no negative rights as a member of the community
o outsiders worse off, so cannibalism occurs, following justified violence
o can’t rely on embedded notion of equality to escape the role which the tradition accords you
o if no one can create the tradition, no one can escape its teaching and the roles it defines, except by
departure (and there may be no place to go) – p.72
religion is regarded as a constant presence  forest = church, harvest = gift of god(s); hence absence of formal
structures
this unstructured character means the natural world is their best embodiment  no such things as secular
world, or simple facts of nature
o chthonic legal order thus revolves around the chthonic religion  divine role – p.73
should think of custom as the outcome of a particular tradition, the result of a process of massaging pre-existing
information and deciding how to act
o result of an entirely respectable mental process, & where it exists there is necessarily very persuasive
pre-existing information to explain and justify it
 chthonic law isn’t customary law in the way that it’s now traditionally thought of
CHANGE AND THE NATURAL WORLD



past is normative b/c that which has lived in the past must be preserved b/c it is sacred
o tradition is profoundly conservationist.
 suggests an ‘immutable’ tradition and ‘hostility to change’
concept of time not as linear, or contingent, or historical, but as an envelope, an environment, which simply
surrounds us as we live
o no future nor past since time is always with us – p.75
much of chthonic tradition is explicitly or implicitly supportive of a non-linear concept of time
o no valid temporal distinction b/w dead, living and yet to be born
 may therefore communicate w/ dead since they are sill here
 characterized by an African expression: ‘vast family of which many are dead, few are living and
countless members unborn.’ – p.76
Fall 2007 Muniz-Fratecelli Foundations Summary
 chthonic lives can be different from one another, and a given life can be different from one season to the next,
but if the life is in harmony w/ the world, not inexhaustibly depleting it, there is no change in the life of the
world
 great deal of flexibility in chthonic existence though it’s not called ‘change’ b/c perspective is different – p.77
 best view appears to be that chthonic tradition has a fundamental core – the sacred character of the world –
which cannot change
o if this changes people & tradition cease to exist
o thus tradition not immutable but vulnerable
CHTHONIC WAYS AND OTHER WAYS



chthonic people did not have a good sense of their own identity when they came into contact with western
people
knew who they were, in the sense of having a social memory, a tradition
o but sense of identity in relation to the other, a self-consciousness, had not fully developed, absent
contact – p.78
defining criterion of identity appears rather the information people choose to adhere to, which is mostly
substantive, but partly definitional
o race occupies no great place in the process, since it possesses very little persuasive power and has no
substantive content
o means of identification used by chthonic people themselves consisted of the most persuasive
information they could assemble
 tradition had to continue to convince, or the people would lose their identity
CHTHONIC AND OTHER IDENTITIES


no pure chthonic traditions in the world today. since expansion of western & Islamic traditions, all chthonic
peoples have recently seen their total information base expand, incorporation western or Islamic ideas or both
chthonic tradition appears to have developed no more precise means of protecting itself from the influence of
outside information
o so not only could western settlement occur, absent adequate institutional opposition, but there was also
always an audience for it
o colonial education also did much to eliminate chthonic forms of education, and chthonic languages, and
hence to eliminate the tradition of chthonic tradition – p.80
THE STATE AS MIDDLE GROUND



greatest indicator of the interdependent character of chthonic identity today is the state
o no chthonic peoples in the world who do not live within a state
2 Basic Models Evident:
1. state constructed by western powers in colonized territories which persists following withdrawal of
western authority
2. state constructed by western powers in the process of permanent settlement in colonized territories,
which persists as an ongoing instrument of western authority
Africa & Asia present examples of the first model of present chthonic-state relations
o in east Asia the state appears to prosper, at least to the extent that it’s a vehicle expanding east Asian
economies
o in central Asia & Africa the contrast b/w (declining) western tradition and chthonic tradition is more
evident
 in central Asia there’s a revival of community-clan institutions (old forms of courts, steppe law,
oral tradition) at the expense of the State
 in Africa there was no effort to eliminate chthonic legal traditions
Fall 2007 Muniz-Fratecelli Foundations Summary
 in the English model imperial control was indirect and existing law continued to prevail,
except to the extent it was specifically displaced by English legislation, and this occurred
usually only in the domains of criminal and public law – p.81
 French rule more direct and a specific option was available for chthonic peoples to opt
for French law
 today the state persists, and in terms of formal state law, African states can be divided b/w those following CML
models (generally in East Africa) and those following CVL models (generally in West Africa) – p.82
 the second model type is found in the Americas & Australasia
o variations have much to do w/ the European legal traditions which European settlers carried w/ them
o CML was the least explicit about chthonic peoples, and even where there were CML statutes CML judges
were still called upon to decide the extent of its displacement, if any, of chthonic law for chthonic
people
 in some cases reservation land was even allotted to individuals (destroying communal titles) –
p.83
o Civil law powers, such as Spain and France, were more systematic in incorporation of metropolitan law
into non-metropolitan territories  all are entitled to its benefit –p.84
CHTHONIC TOPICS

the use of western courts to affirm and protect chthonic use of land has already been noted; it has become an
inextricable dimension of contemporary chthonic land use
CHTHONIC PEOPLES, STATES AND HUMAN RIGHTS



position of chthonic peoples, and chthonic law, represents the most vivid argument in favour of ‘differential
citizenship’
o chthonic peoples do not represent the new diasporas; they are arguing on the basis of a prior claim
where constitutional documents impose a monolithic form of rights analysis, chthonic opposition is founded on
the particular, and distinct, form of chthonic law
o rights analysis is here not protective and enabling; it is rather a form of cultural and legal domination –
p.87
elsewhere more reception to rights implementation: in Africa rights proponents advance two distinct theses:
o rights & the means of their implementation are essential instruments in the struggle against political
regimes which are arbitrary, despotic and corrupt, controlled by the Wa Benzi (peoples of the Mercedes
Benz)
 rights here are western in character, formalized in documents and requiring vigorous judicial
intervention for their protection.
 argument is that you can’t adopt the western tradition in part only; its corruption requires
western means of correction
o second thesis draws on increasing ambiguity of rights discussion in the west, to find at least collective
rights (‘intersubjective’ or ‘polysubjective’) which would in many instances be superior to particular
western rights. – p.88
 totality of chthonic tradition could thus serve the goal of human dignity as effectively as a
western code of human rights
UNIVERSALIZING THE CHTHONIC?


nature of chthonic tradition is broadly supportive of its non-universalizing character, at least by aggressive
means
most chthonic peoples think that the argument that the world should be preserved is a self-evident one
o those who do not accept it will eventually bear the burden of not accepting it
Fall 2007 Muniz-Fratecelli Foundations Summary
CML - Bulun Bulun, Milpurrurru v. R & T Textiles Pty Ltd. [1998] 1082 Federal Court of Australia
Facts:






Bulun Bulun had a piece of artwork copyrighted; the art was representative of his Ganalbingu heritage
R & T Textiles infringed on his copyright by producing fabric with a pattern similar to his artwork
R &T and Bulun Bulun settled out of court, with R & T saying that they had unintentionally produced the fabric
Milpurrurru (representing the Ganalbingu people) tries to pursue the action against R & T arguing that the
copyright is actually collective for the whole community
Bulun Bulun had to ask permission from his community to create and sell his artwork to a museum, but not to
have it reproduced in a book
the Ganalbingu have communal titles on artwork and land in their community  they argue that Bulun Bulun
was a fiduciary of the copyright
Issue:
Does CML recognize collective ownership of the artistic work? Do the circumstances in which the artistic work was
created give rise to equitable interests in the Ganalbingu people?
Held: 1) No  R & T 2) No  R & T
Reasoning:
 According to Sec. 35 (2) of the Copyright Act, only the creator of the artistic work can hold copyright
 the Ganalbingu only allowed members of the community to create artwork if they had trust and confidence in
them; thus the Court finds that Bulun Bulun has a fiduciary duty towards his people
o he is thus responsible for not exploiting the work and for taking action when there has been an
infringement on the artistic work
 however, without more, the existence of that obligation does not vest an equitable interest in the ownership of
the copyright in the Ganalbingu people
 Bulun Bulun has satisfied his fiduciary duty by taking action against R & T
Ratio:
There is great difficulty with establishing collective ownership by a community of an artistic work created by a sole
person. The Court finds that a fiduciary relationship exists between the artist and the community to protect the
abuse of the work, but this is not sufficient enough to find that there is a basis for collective copyright.
Comments:
 the Court discusses whether or not Aboriginal laws should be imposed on people outside their community and
quickly dismisses this by saying that it must work in a Common Law framework since there have already been
advancements in the area of Copyright and there is legislation in place to regulate it
o “If the common law had not been amended in the meantime by statute, an interesting question would
arise as to whether Aboriginal laws and customs could be incorporated into the common law.”
o good case to explain a contrast between what is being asked and what is being given; if he were to sell
the painting he would actually have to consult his community prior
o there is an understanding of property that is not really property
Delgamuukw v. British Columbia, [1997]
on appeal from the court of appeal for British Columbia
Facts:
The appellants, all Gitksan or Wet’suwet’en hereditary chiefs, both individually and on behalf of their “Houses”,
claimed separate portions of 58,000 square kilometres in British Columbia.
Their claim was originally for “ownership” of the territory and “jurisdiction” over it. At this Court, this was
transformed into, primarily, a claim for aboriginal title over the land in question.
At trial, the appellants’ claim was based on their historical use and “ownership” of one or more of the territories.
Other evidence: sacred oral tradition about their ancestors, histories and territories, a spiritual song or dance or
performance which ties them to their land, a feast hall where the Gitksan and Wet’suwet’en people tell and
retell their stories and identify their territories.
Fall 2007 Muniz-Fratecelli Foundations Summary
Held:
The appeal should be allowed in part and the cross-appeal should be dismissed.
Reasoning
The Content of Aboriginal Title, How It Is Protected by s. 35(1) of the Constitution Act,
1982, and the Requirements Necessary to Prove It
Aboriginal title : encompasses the right to exclusive use and occupation of the land for a variety of purposes, which
need not be aspects of those aboriginal practices, customs and traditions which are integral to distinctive
aboriginal cultures. The protected uses must not be irreconcilable with the nature of the group’s attachment to
that land.
Aboriginal title is sui generis (i.e. NOT a fee simple, not “normal” property):
1. inalienable (cannot be transferred, sold or surrendered to anyone other than the Crown.)
2. its origin
a) the relationship between the common law which recognizes occupation as proof of possession
b) possession and systems of aboriginal law pre-existing assertion of British sovereignty.
3. title is held communally.
“right to occupy and possess” in broad terms
The exclusive right to use the land is not restricted to the right to engage in activities which are aspects of aboriginal
practices, customs and traditions integral to the claimant group’s distinctive aboriginal culture. Incorporates
present-day needs and aboriginal title encompasses mineral rights of exploitation (i.e. not a traditional use
only)/
Limits to aboriginal title
1. cannot be used in a manner that is irreconcilable with the nature of the claimants’ attachment to those lands
(seen as an inherent limit given relationship of an aboriginal community with its land).
2. May not be alienated
a. because the land has an inherent and unique value in itself, which is enjoyed by the community with
aboriginal title to it.
b. The community cannot put the land to uses which would destroy that value
c. Only possibility of alienation is to the Crown
d. If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, then they must
surrender those lands and convert them into non-title lands to do so.
The constitutionalization of common law aboriginal rights
Aboriginal title under s. 35(1) of Constitution Act 1982
o This was the recognition of aboriginal title, not its creation
o The existence of an aboriginal right at common law is sufficient, but not necessary, for the recognition and
affirmation of that right by s. 35(1).
o Constitutionally recognized aboriginal rights fall along a spectrum with respect to their degree of connection
with the land:
Aboriginal rights Spectrum:
1. practices, customs and traditions integral to the distinctive aboriginal culture of the group claiming the right but
where the use and occupation of the land where the activity is taking place is not sufficient to support a claim of
title to the land.
2. (middle) activities which, out of necessity, take place on land and might be intimately related to a particular
piece of land. May not be able to demonstrate title to the land, it may nevertheless have a site-specific right to
engage in a particular activity. (Aboriginal title vs. Aboriginal Rights)
3. Aboriginal title: more than the right to engage in site-specific activities/rights
 Aboriginal rights vary with respect to their degree of connection with the land. May be unable to claim
aboriginal title, but can nevertheless possess aboriginal rights (recognized and affirmed by s. 35(1))
Definition of Aboriginal title: a right to the land itself.
Fall 2007 Muniz-Fratecelli Foundations Summary
Section 35(1) tries to reconcile the prior presence of aboriginal peoples with the assertion of Crown sovereignty.
Hence, must show both aspects of that prior presence:
1. the occupation of land
2. the prior social organization and distinctive cultures of aboriginal peoples on that land.
The test for the identification of aboriginal rights vs aboriginal title
Distinct in two ways:
1. For aboriginal title: the requirement that the land be integral to the distinctive culture of the claimants is
subsumed by the requirement of occupancy.
2. The time for the identification of aboriginal rights is the time of first contact with Europeans, for aboriginal title
it is the time at which the Crown asserted sovereignty over the land (must establish that it occupied the land in
question at this time)
a. Aboriginal title is a burden on the Crown’s underlying title. The Crown, however, did not gain this title
until it asserted sovereignty. Aboriginal title crystallized at the time sovereignty was asserted.
b. Under CML, the act of occupation or possession is sufficient to ground aboriginal title and it is not
necessary to prove that the land was a distinctive or integral part of the aboriginal society before the
arrival of Europeans.
c. The date of sovereignty is more certain than the date of first contact.
Proof of occupancy (for aboriginal title).
1. Physical occupation is proof of possession at law, which in turn will ground title to the land.
2. Physical occupation may be established from the construction of dwellings, cultivation, regular use of land for
hunting, fishing etc.
3. The group’s size, manner of life, material resources, and technological abilities, and the character of the lands
claimed must be taken into account.
4. Not necessary to include a connection with the piece of land as being of central significance to its distinctive
culture.
5. The question of physical occupation is one of fact to be determined at trial.
6. If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between
present and pre-sovereignty occupation. An unbroken chain of continuity need not be established, as long as a
substantial connection between the people and the land is maintained.
7. At sovereignty, occupation must have been exclusive
 The common law should develop to recognize aboriginal rights as they were recognized by either de facto
practice or by aboriginal systems of governance.
The “key” factors for recognizing aboriginal rights under s. 35(1) are met in the present case:
1. When dealing with a claim of “aboriginal title”, the court will focus on the occupation and use of the land as part
of the aboriginal society’s traditional way of life.
2. Exclusivity means that an aboriginal group must show that a claimed territory is indeed its ancestral territory and
not the territory of an unconnected aboriginal society. It is possible that two or more aboriginal groups may
have occupied the same territory (joint occupancy)
3. Continuity may still exist where the present occupation of one area is connected to the pre-sovereignty
occupation of another area. May provide evidence of present occupation as proof of prior occupation.
4. If aboriginal peoples continue to occupy and use the land as part of their traditional way of life, the land is of
central significance to them. Occupancy is part of aboriginal culture in a broad sense and is, therefore, absorbed
in the notion of distinctiveness.
Infringements of Aboriginal Title: The Test of Justification
Constitutionally recognized aboriginal rights are not absolute and may be infringed by the governments if the
infringement:
1. furthers a compelling and substantial legislative objective
2. is consistent with the special fiduciary relationship between the Crown and the aboriginal peoples.
Fall 2007 Muniz-Fratecelli Foundations Summary
a. Tthe right to exclusive use and occupation of land is relevant to the degree of scrutiny of the infringing
measure or action.
b. There is always a duty of consultation and, in most cases, the duty will be significantly deeper than mere
consultation.
c. Lands held pursuant to aboriginal title have an inescapable economic component which suggests that
compensation is relevant to the question of justification as well. Fair compensation will ordinarily be
required when aboriginal title is infringed.
Ex. The development of agriculture, forestry, mining and hydroelectric power, protection of the environment or
endangered species, and the building of infrastructure
Extinguishment
Section 91(24) of the Constitution Act, 1867 (the federal power to legislate in respect of Indians) carries with it the
jurisdiction to legislate in relation to aboriginal title, and by implication, the jurisdiction to extinguish it.
Provincial laws of general application apply proprio vigour to Indians and Indian lands. A provincial law of
general application cannot extinguish aboriginal rights. The province had no authority to extinguish aboriginal
rights either under the Constitution Act, 1867 or by virtue of s. 88 of the Indian Act.
Mabo v. Queensland
Facts:
 Proposals to extend the boundaries of Queensland to include the Murray and Darnley Islands were adopted by
the Colonial office and in 1878 Queen Victoria passed letters for the “annexation of to that colony of (certain)
Islands lying in Torres Strait and b/w Australia and New Guinea. This included the Murray Islands.
Summary of the issues:
 This case discussed the issue of whether the 1878 transaction had the effect of vesting the Crown with absolute
ownership, legal possession and exclusive power to confer title to the land of the Murray Islands.
 If this is the case (as the defendant, State of Queensland, contends) then the Queen took the land occupied by
the Meriam people without their knowing of the expropriation. Without the consent of the Queen they would no
longer be entitled to occupy the land they had occupied for centuries. (para 23)
 The “[c]ourt must now determine whether, by the common law of this country, the rights and interests of the
Meriam people of today are to be determined on the footing that their ancestors lost their traditional rights and
interests in the land of the Murray Islands on 1 August 1879.” Para 28
Holding: On 3 June 1992 the High Court of Australia delivered its judgment in the case of Mabo v the State of
Queensland (No. 2), holding that the common law of Australia recognised native title. The term 'native title' was used
by the High Court to recognise that Aboriginal peoples and Torres Strait Islanders may have existing rights and
interests in land and waters according to traditional laws and customs and that these rights are capable of
recognition by the common law.
Specifically, the Court recognised a claim by Eddie Mabo and others on behalf of the Meriam people of the Island of
Mer in the Murray Islands in the Torres Strait, that the Meriam people owned the land at common law because they
were the traditional owners of their country under Islander law and custom.
The Queensland Government had earlier tried to extinguish the Meriam people's property rights under the
Queensland Coast Islands Declaratory Act 1985. However, the High Court ruled in 1988 (Mabo v the State of
Queensland (No. 1)), that the Queensland law breached the Commonwealth's Racial Discrimination Act 1975 (Cth).
The Mabo judgment addressed some of the basic premises of the Australian legal system and society. In particular,
the decision overturned the concept of terra nullius (a land belonging to no one) on which Australia's whole land
tenure system had been based. The High Court recognised that the rights of Aboriginal people and Torres Strait
Fall 2007 Muniz-Fratecelli Foundations Summary
Islanders to native title may survive in certain areas and that their native title must be treated fairly before the law
with other titles.
Order:
(1) declare that the land in the Murray Islands is not Crown land within the meaning of that term in s. 5 of the Land
Act 1962 (Q.);
(2) putting to one side the Islands of Dauer and Waier and the parcel of land leased to the Trustees of the Australian
Board of Missions and those parcels of land (if any) which have validly been appropriated for use for
administrative purposes the use of which is inconsistent with the continued enjoyment of the rights and
privileges of the Meriam people under native title, declare that the Meriam people are entitled as against the
whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands;
(3) declare that the title of the Meriam people is subject to the power of the Parliament of Queensland and the
power of the Governor in Council of Queensland to extinguish that title by valid exercise of their respective
powers, provided any exercise of those powers is not inconsistent with the laws of the Commonwealth.
Class Notes
- in general western law tries to individualize interests;
- are elements to our tradition that could be construed as cathonic: for instance in a medical malpractice case
you have to look at the standard of care within the community; sometimes you just simply have the testimony
of doctors orally within the courtroom
o these questions are brought up more in a business setting because of the variation of local business
practices
radical title means that ultimately all claims of property come from the sovereign
Elements of Recognizing a Cathonic Tradition
 grounded in orality
o informal
o dynamic/organic
o no privilege (accessible)
o consensus
 land
o stewardship
Islamic Law - M. Cherif Bassiouni, Gamal M. Badr
-
-
-
Islamic law derives from teachings of the Qur’an and sayings/deeds of Prophet Muhammad (the sunnah);
majority of norms fall into two categories: ibadat (pertaining to faith and ritual norms) and mu’amalat (dealing
with societal relations and individual interactions in society)
Pre-Islamic society already had techniques such as consensus, custom, analogy, consideration of the public good,
best outcome in a given case, and necessity, in place
role of jurists formulating rules of law is peculiar to Islamic law (jurist’s law); Roman law the authority is the
Senate (legislator’s law), English common law, judicial decisions set precedent but have Parliament as supreme
authority (judge’s law)
Ilm usul al-fiqh : legal technique that combines legal, philosophical, and epistemological dimensions in a
methodological framework  used to identify, interpret, and apply principles, norms & standards, and in their
absence, to identify by certain techniques an applicable norm to situations for which existing norms are
unavailable
o method by which to justify as the law as made (there is an absence of extrinsic control mechanisms)
Supplemental Sources (used when rules from Qu’ran need interpretation & is not found in Sunnah)
Fall 2007 Muniz-Fratecelli Foundations Summary

Ijma (consensus of opinion of the learned scholars)

Qiyas (analogy by reference to the Qur'an and the sunnah)
Istislah or maslaha (consideration of the public good)

Istihsan (reasoning based on the best outcome, or equity)

Urf (custom and usage, subdivided between general and special)

The practices of the first four "Wise Caliphs" (a form of authoritative precedent)

Ijtihad n12 (unprecedented doctrinal development)

Treaties and pacts

Contracts (the Shari'ah considers a contract the binding law between the parties, so long as it does not
violate the Shari'ah)

The jurisprudence of judges
-
must eliminate contradictions and conflicts in the law b/c it is God-given law to humankind
Several schools of jurisprudence developed, known as madhahib (plural of madhhab). The Sunni (now comprising some 90% of the world's estimated 1.3 billion Muslims) have four schools
o schools agree on primacy of Qur’an and the Sunnah but rank secondary and tertiary sources differently
doctrinal debate among all schools of jurisprudence: literal interpretation of Qur’an and the sunnah?
o 3 broad categories of thinking and practice:
 so-called traditionalists; represent prevailing religious establishments – literal interpretation
 so-called fundamentalists; dogmatic, intransigent, and literalist – seek solutions of earlier times;
some turn to political activism and violence to propagate their views
 a few secular reformists and a few forward-thinking traditionalists (ilmani); seek to achieve
legislative goals using recognized jurisprudential techniques in light of scientific knowledge
Review of Boyd Report
Section 6: Analysis
Historical overview
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Misconceptions in the media and general public about use of other methods of personal law
o Use of religious or traditional laws in family law matters or other matters of personal law has been more
the norm than the exception throughout the world in previous centuries. Continues to exist in some
form in certain parts of the world
o Conquered and conquering peoples often retained their own form of law ex: explains retention of civil
law in Quebec by the conquering British (exception to some extent was Aboriginal peoples of Canada pg.
79)
The Reformation broke up the Catholic Church’s domination over Europe
Began to see the gradual emergence of the nation state, and development of laws for civil matters
Jurisdiction of ecclesiastical courts followed
o However in many places marriage cont’d to be under religious law ex: in Britain until 1857
In non Western parts of the world as well traditional law of conquered groups was permitted ex: Jewish and
Christian law under Islamic Turkey, personal law systems by colonized peoples in Asia, Africa, North America
Current situations
o Muslims in Britain comprise the largest minority faith community.
 They have appealed since the 1970’s to have a separate legal system which would automatically
apply to all UK Muslims. Their proposals and submissions have been rejected by British gov’t
Fall 2007 Muniz-Fratecelli Foundations Summary
 They implement an informal system of alternate dispute resolution to deal with Muslim family
matters. Since 1982 this has been run by Islamic Sharia Council UK (ISC)
 1989 survey showed that 66% of Muslims prefer to use this system over English law
o France has had an assimilation of citizenship structure which enforces secular national law on everyone.
 Technically no other law is allowed to apply to citizens however Muslims (second largest
religious group after Roman Catholics) are not subject to French family law until they have
become citizens. Of 4 million Muslims in France only 1 million are citizens
 In some cases due to bilateral agreements b/w France and other countries French judges apply
the laws of the residents home country (done within bounds of French law, public policy, and
International conventions). The same practice occurs in Germany
o German Muslims have applied to have recognition as a public-law corporation which would give them
official status as an equal religion under the law. This has been denied. Jewish community only nonChristian community to be granted this status
o German citizenship has been very restricted to outsiders (had to prove one parent of German blood up
until 1999). Today law of country of origin applies to all immigrants without German citizenship so
German judges have had to interpret Islamic family law
 In Canada separation of Church and state has not been so demarcated. Have had a gradual shift away from
religious control over personal matters
 Secular state in Canada has meant that no religion has been given primacy over any other
Political identity
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Necessary to remember distinctness of situation of Canada’s Aboriginals and not try to compare that with other
groups
Canada’s Aboriginals have rights that are enshrined in the Constitution Act, 1867, and that were often given as a
result of treaties and other documents signed by the parties as sovereign nations
Creating a separate legal system for Muslims is not feasible on a political, practical or social standpoint
o Needs to be understood that arbitration is not a parallel legal system but a method of alternate dispute
resolution (ADR) that is subordinate to the court system and subject to judicial review
Notion of equality before and under the law and existence of one legal regime available to all are the
cornerstones of liberal democratic system.
Multiculturalism

Two main approaches to multiculturalism have been articulated
o No state protection on basis of cultural or religious minorities (secular absolutism) as practiced in France
 Based on assumption that secular treats everyone equal
 Problems: however our legal system and thus the law of Ontario is based on Judeo- Christian,
enlightenment principles which focus on individual. Strict adherence to these may serve to
alienate others new to this culture; culture is also imp. in how we view ourselves
o Other side is non-interventionist approach. Principle that allows “intra group affairs” to be outside the
domain of the state law.
 Problems: renders invisible the violations of members individual rights which occur under the
shield of group identity
 Although the family law regime in Ontario is not mandatory, however it is not tolerable for any
individual to lose legal protection b/c of exercise of power by a minority group to the point of
being barred access to the laws of Ontario
Domestic violence: A public policy issue


Harms of violence against women have come to light due to persistent advocacy by women throughout the
world
Acceptance of UN Declaration on the Elimination of Violence Against Women in 1993
Fall 2007 Muniz-Fratecelli Foundations Summary
 Since 1980’s in Canada domestic violence has moved from an issue considered private and household based, to
one of public concern
 Issue of domestic abuse lies at core of opposition to arbitration of family law matters
 Inherent and continuing imbalance of the sexes will makes it difficult if not impossible for women to be treated
equally in ADR especially where domestic violence has occurred
 Consultations revealed that there is fear of this in the familial context within which women live
 Many respondents urged that screening for abuse be required in both arbitration and mediation to ensure safety
for vulnerable clients
Impoverishment of Women and Children
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Respondents in the consultation process raised concern that use of arbitration in family law would lead to
impoverishment of women and children
Obligations in Islamic law for men to support their wives and children is significantly limited in comparison to
what is required by Canadian and Ontario law
Access to Justice
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Varying views of arbitration for family matters
o Some believe that it opens doors to the justice system enhancing the ability of parties to find a
mechanism that enhances their particular needs
o Others however felt that arbitration could result in parties being denied justice in a public forum
through the courts
Section 8: Recommendations
General
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Report did not find that women are being discriminated against as result of arbitration of family law issues.
Review supports cont’d use of arbitration in family law matters subject to certain safeguards.
Arbitration Act should continue to allow disputes to be arbitrated by religious law subject to conditions
Regulatory
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Regulatory changes should be implemented to ensure that parties have full understanding of their circumstances
and implications of choosing arbitration
Independent Legal Advise
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Need for independent legal advice for those participating in family or inheritance arbitration
Public legal education
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Need for useful, accessible information so vulnerable women, in particular are aware of their legal options to
resolve disputes
Training and education for Professionals
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Gov’t of Ontario should work together with professional bodies to develop a standardized screening process for
domestic violence for use in family law and inheritance mediations and arbitration
Oversight and evaluations of arbitrations

Government needs to have the information necessary to evaluate how arbitration is impacting on vulnerable
people
Fall 2007 Muniz-Fratecelli Foundations Summary
Community development

Government community partnerships are necessary for the delivery of public legal education materials and to
ensure that messages are gender sensitive, culturally appropriate
Class Notes
Speaker – Professor Nsour
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500 legal verses in the Qur’an which are the highest in the hierarchy of legal norms
the sayings of the prophet weren’t written down by followers until after his death; there are scholars
that scrutinized the sayings to ensure that they do not contradict the rules in the Qur’an
Theolocentresim – people that attribute everything that happens in Middle East to Islamic ideology
The Era of Rashidum (Righteous People)
The Era of Ummayad
The Era of Abbasis
The Era of Mamalik
The Ottoman Empire
632-661
661-750
750-1258
1258-1516
1516-1924
Sunna (sayings of the prophet) concerned of two features:
 normative statement s– substance of the Hadith
 chain of transmission – how the statement was transmitted between disciples
 in Sunnism, they believe AbuBaker was Muhammad’s closest confidant, whose successor was Omar,
Othman and then Ali
 the Shiites believed the succession started from Ali
 the classifications range from the authentic, the good , the weak and the rejected
o once something is authenticated then it becomes necessary knowledge (absolute truth)
o Science of Hadith just dealt with the chain of transmission
- pre-Islam women were considered a source of shame: they would bury their daughters alive to prevent
them from bringing shame on the family
- one issue addressed by the Qur’an is to punish men who kill either their wives or female relatives in
order to restore honour to the family
process of ijtihad (consensus) two types:
1) Active consensus, when all the jurists qualified to participate express the same opinion on a particular
issue; and
2) Passive consensus, when some qualified jurists express an opinion & the others, being aware of it, do not
dissent.
istislah (maslahah) – based on public interest
istihasan – based on the knowledge of the scholar
constructive asymmetry: state on one side which recognizes everything including religious tradition as
arbitration
Ginnine Fried – The Collision of Church and State: A Primer to Beth Din Arbitration and the New York Secular
Courts
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halacha – Jewish law used in New York by an arbitration called a beth din
Fall 2007 Muniz-Fratecelli Foundations Summary
 benefit of arbitration is that an arbitrator can be selected based on their specialization (in this case it’s
knowledge of Jewish law)
 if the parties signed an arbitration agreement than the decision of the arbitrator could be legally binding p.2
History
 70 A.D. Roman conquerors establish central authority of Jews; continues throughout the Diaspora
(spreading out of peoples throughout the world) and allows Jews to have a general self-government policy
to further their aims which involved their own systems of courts p.3
 Jewish court systems evolved as a response to the Talmudic ban on Jews voluntarily presenting their cases
to courts governed by idolatrous peoples, courts of Akkum, including Muslim courts. The Talmud says that
Jews shouldn’t use gentile courts even if their laws are the same as Jewish ones.
 also litigating another Jew in secular court is a desecration of God’s name because it brings shame on the
community as a whole
 Jews are supposed to be “a light unto nations” and if it is seen by outsiders that following Jewish rules is of
little worth and does not make one a better person since one still breaks them p.5
 AND choosing to use a secular court undermines the authority of Jewish law
 the Talmudic ban does not prohibit Jews from appearing as defendants in courts; there is also another
exception where a defendant refuses to voluntarily submit to the jurisdiction of a beth din; then the plaintiff
must apply to the beth din for a heter (exemption) from the ban to try the case in a secular court - law of
the land is the law – p.637
 this ban also applies to Jewish lawyers representing Jewish plaintiffs since Jews are prohibited from aiding in
the commission of the violation of the law
 the violation of the Talmudic ban on utilizing the secular courts merited cherem (excommunication) imposed
by the beth din; doesn’t mean the Jew loses status as a Jew, BUT it calls for the expulsion from the religious
and social life of the community, including withholding burial rites, prohibiting synagogue admittance, and
preventing patronizing his livelihood or business
o enforcement of this ban has relaxed over the years, now there is inadequate enforcement p.6
Class Notes
Talmudic Law – Guest Speaker Rabbi Michael Whitman
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orthodox Jews most likely to use Beth Din arbitration
separation of church and state: idea comes from a letter that Thomas Jefferson wrote; he was under
vicious attack by religious groups in the Southern colonies who accused him of being an atheist and an
infidel, and thus she be voted against in the 1800 election.
- crimes are understood as being against society in general while private actions remain under Talmudic
law
- in European society, Jews were allowed to maintain their own courts systems but were discriminated
against in other ways through Draconian laws which marginalized the Jews within society
- religious courts were primarily introduced for the preservation of a community’s integrity
- question of the legitimacy of the beth din adjudication is completely separate from the question of
recognition by the state
- there is no enforcement of the beth din except through social pressure
- religious arbitration is not legal in Canada (not allowed to have personal matters such as custody, divorce,
etc. arbitrated)
Speaker – Rabbi Whitman
- Jewish law claims to be comprehensive in incorporating law, social policy, philosophy, theology and
justice
- the civil law part of Jewish law starts with the five books of Moses (Torah); understood by tradition
Judaism as God’s word revealed to the people at Mount Sinai
Fall 2007 Muniz-Fratecelli Foundations Summary
- in addition to that written law, there is an oral law (description or explanation of written law); traditional
Judaism posits that the laws written in the Bible and Torah are impossible to decipher independently
- Rabbis have added laws to reflect social changes  obligation of Jew to obey both primary and these
secondary laws is the same; but if there is a doubt as to whether a rule is applicable, then the rule of the
Bible must be followed; if there is a doubt as to rabbinic law then that law need not be followed
- tradition of common law in terms of precedent, looking at responsa literature (something like a reference,
question is asked and the judge writes a response); look at previous cases  these terms do not exist
within Jewish law
- “mishna”: means teaching; first written about 200 A.D.; accompanied by the larger work called the
Talmud (to study) which is the discussion and analysis of the code of the Mishna
- “the law of the land is the law”: states that when a Jewish person is living outside of Jewish sovereignty
they are obligated to follow the law of the land as a religious obligation
o what is a law? only a law that is implemented fairly; anti-semitic laws are not considered as such
 written in the Talmud, based on a verse in Jeramiah
o applies in two well-recognized categories: taxation (even if in disagreement, but imposed fairly)
and laws that are imposed fairly for the good of the community & general welfare of the people
o this leaves out areas such as Marriage and Divorce; must be divorced in a Jewish court to receive
a “get” and have the divorce be legitimate
- a Jewish court is comprised of three judges and there is very little enforcement power of a beth din other
than the appeal to the religious conscience of the people involved in the arbitration and social pressure
o used for adjudicating civil disputes between two Jewish parties
o rules over personal status issues such as divorce, conversion to Judaism, etc.
- process for civil dispute: judges will hear both sides and the first thing they will attempt to do is use a
principle call Shara (compromise); if that is not possible based on the facts of the case or the personalities
of the people involved, then they will look at the code and see if there is something directly applicable to
the case, if there is not then they will look at the Responsa literature
- Judges must have an expertise in all Jewish law, expertise in the area that they are ruling over, must be
completely objective; there is no room in a beth din system for lawyers because judges are supposed to
advance both claims of the parties; also must be personal role models or representatives of the Jewish
tradition; normally appointed by an existing court or community
o the term for lawyer in Hebrew has connotations along the lines of “used car salesman”; however
there are instances where people come before a beth din and feel that they are not being treated
fairly  cases where male and female both come before three male judges and the female feels
less comfortable; or a religious Jew and non-religious Jew; also helps in enforcing agreements
that come out of arbitration (lawyer requirement fulfills the right to representation)
- remuneration is not standard for judges within this system
- system in Israel today is not based on Jewish law, but there is a rabbinical system that deals with Jewish
issues today; usually in most sizable Jewish communities there is a local beth din
- system of a beth din is more effective than it was 300 years ago
Ernest Caparros
- Rediscovering judicial roots could bring together western law and canon law
- Canon-Roman law = Ius commune
- Canon roots : good faith, penal right, rights of refugees (asylum), extraterritorial (privilegium fori)
1. The influences of Christian life on the law
- Christian impact => fundamental changes in lifestyle
Fall 2007 Muniz-Fratecelli Foundations Summary
A) Fundamental Influence :
o Trilogy : internal organisation of the Church, social needs/requests, relations with a higher power
B) A real influence :
o No changes were imposed
o The social tissue changes when the people accepted the changes that the religious message brought
about
o We’re all sons of God (through baptism) => radical equality
o Evangelical equality finds its way into contracts => consensual
o Marriage => equality b/w women and men. Husband expected to be faithful (and other virtues)
o Good faith => possession, last wishes…
C) A discrete influence
o Christina roots of the social transformation and the law is less evident
o Can’t always distinguish Roman law from its canon content
2. Elaboration of the Ius commune
- Droit « savant » taught in universities
- Deals with judicial doctrine more than positive law
- Auctoritas (knowledge socially recognized), and not protestas (power socially recognized)
- Bologna : melting pot of the Corpus iuris civilis (technique) and the Corpus iuris canonici (phase of judicially
framing the Christian message)
- Universities allow competition b/w Roman law (which is being Christianised) & Canon law (which is becoming
more judicial)
- End of XIII & XIV centuries : hard to distinguish b/w Romanists and canonists
- Ius Commune (unlike CML) never superseded local & national law. But local and national rules were interpreted
in light of the Roman-Canon Law rules.
3. Integration of the Christian message
A) Roman Christian legislation
o Ecclesiastic CVL : laws linked to religion (condemn prostitution, diminish slavery)
B) The Christianisation of roman law
o Roman concepts receive new feel under the inspiration of the Christian message (adaptation of
theological notions to the law)
o Aequitas : in canon law, general tendency towards moderation, mercifulness and forgiveness =>
provokes many changes
o England : Court of Chancery “for the love of God and in the way of Charity”
C) Consolidation of Canon law
o Life precedes the law
o Christian message manifests itself judicially in the legislation of Christian emperors
o Canon doctrine takes its distance from roman law, but keeps the same terminology
o Copy of the Corpus iuris civilis is compiles by jurists of Justinian during the VI century & is taught in
Bologna by Irnerius : XI century
 Half a century later, Gratien teaches canon law with his own manual and other texts (like the
Corpus iuris canonici)
o Consolidation : XIII century. Canon law gives up its technical dependence on roman law to become
autonomous, which later becomes supremacy
o Canon law leaves its mark in the western laws which are at the time in an elaboration phase.
Class Notes
Fall 2007 Muniz-Fratecelli Foundations Summary
Canon Law – Dr. Ernest Caparros – Speaker
-
-
life starts first than law
ways of living have important consequences in the social fabric: but Christians originally had no influence on
law so they created their own Roman Christian Law
3 volume study presenting the Roman Christian Law – influence of this law was real even though not
recognized by authorities
in some cases the influences ended up changing the laws
o ex. gospels  yes is yes, no is no (being sincere) – turned into the Roman law of pacta sund servanda
Monk named Gratian made a treatise called Gratian’s decree, a collection of these norms; nearly 3,800 texts.
It was not law, he had no power or authority
o he studied canon law at Bologna and then taught there from 1218 to 1221
o it became not only the definitive canonical collection of the entire preceding tradition but also a
systematic application of the scholastic method to all legal material.
o The Decretum dealt with the sources of the law, ordinations, elections, simony, law of procedure,
ecclesiastical property, monks, heretics, schismatics, marriage, penance, and sacraments and
sacramentals.
o Primitive as it was, it provided a foundation for systematic compilation of the legal material by the
canonists and for the expansion of decretal law.
o It provided a basis for the education in canon law that began in the schools of Bologna, Paris,
Orléans, Canterbury, Oxford, Padua, and elsewhere. It was accepted everywhere in the ecclesiastical
administration of justice and government.
first code of Canon law sanctioned in 1917 by the Roman Catholic Church; this was not to change but to
clarify the canon law
in 1929, the Pope began the unification of the code for both the Roman Catholic church and the Eastern
churches
Grewe – The Epochs of International Law
Claims by the Coastal States
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According to Roman Law traditionally it was believed that the sea was Res Communis
Seas couldn’t be object of exclusive privilege because of their natural quality, they were extra commercium and
open to common use by all
However conflicts did begin to arise at the beginning of the 12th century in relation to exclusive rights over certain
maritime regions of special importance
In the Mediterranean the major Italian seafaring republics Genoa and Venice proclaimed these ambitions and
tried to enforce them effectively
o Venice worked to maintain Maritime dominium over the Adriatic Sea. They signed treaties with the
Emperors Otto IV and Frederick II in 1209 and 1220 respectively. These treaties may have indicated a
respect for the rights they held over the waters. The Venetians demanded high fees for navigating the
Northern Adriatic waters
Outside the Mediterranean the Danish- Norweigan and the English Kings asserted exclusive rights to rule certain
seas in particular the Baltic the North Sea and parts of the Atlantic ocean
Throughout the middle ages and well into modern times Denmark claimed control over the entrances to the
Baltic, the Sound and the Great and little Belts.
Fall 2007 Muniz-Fratecelli Foundations Summary
 Denmark extended its claims to control over the Baltic as a whole in an explicit manner. The practical effects of
such claims consisted mainly in the prohibition of fishing in these waters, which was issued by the Danish kings
and addressed to all foreign nations
 Claims by English kings to “sovereignty of the sea” around the British Isles had their origins in the 13th century.
King of England used his admirals to police the “Narrow Seas” (the Straits of Dover and the Channel) pg. 131
o An ordinance issued by King John in 1201 mentions for the first time the requirement of the “sea
ceremonial”
o Ships whether laden or empty, which refused to obey an order from the Royal Admiral to lower its sails,
was to be forced into port, seized and its crew punished
o In 1336 King Edward III spoke of his predecessors as “Lords of the English Sea on every side”
 All these claims were limited to more or less restricted maritime areas. An exclusive right of dominium over the
high seas as a whole was never claimed by anyone throughout the entire Middle Ages
Law and Dominium of the Sea: Mare clausum v. mare liberum
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Foundations of Maritime law were changed in the 16th century due to oversea discoveries
Spanish Ages were characterized by two things
o One part involved the continued struggle for dominion over closed or geographically restricted seas
o New problems came up due to the discovery of America and the opening of a new global horizon
 These problems concerned the question of control over the open unlimited oceans of the world
pg. 257
The foundations of the Hispano-Portuguese claims to dominium over the major oceans of the world were
identical with the legal titles on which the overseas colonial acquisitions of these two nations were based: the
papal investiture and the right of earliest discovery
o In addition to the papal investiture, both Spain and Portugal referred to discovery as a subsidiary legal
title
Most important Spanish writers on the law of nations of the 16th century belonged to the camp which defended
the freedom of the seas.
o Ferdinand Vasquez de Menchaca (1509-66) defended Spanish interests his book published in 1564 he
demanded freedom of the seas challenging the claims of the Venetians and Genoese to control certain
limited parts of the Mediterranean. He also questioned the Hispano-Portuguese claims to control the
world’s oceans
o Only in the 17th century was a scholarly defense of Hispano-Portuguese policy of dominion written (a
treatise by de Freitas, a Portugeuse professor at a University in Spain in 1625) in response to arguments
that were made by Hugo Grotius
 His argument was that Spanish monarchy had shouldered much of the burden in providing
security for those areas which bordered its territory (this argument did not apply just to coastal
seas but also to the rest of the world’s oceans)
 To de Freitas neither the character of the ocean nor its immeasurable extent was an obstacle to
the exercise of sovereign rights or occupation. Despite their size and the associated costs, de
Freitas maintained that the King of Spain had full sovereign rights to over the sea. Pg. 259
The French on the other hand argued for freedom of the seas, and King Francis I issued statements to such effect
in 1533.
1603 end of the Tudor period in England. Beginning of Stuart era. King James I favoured the principle of mare
clausum, which allowed for restrictions on the seas, as opposed to that of freedom of the seas. Pg. 263
o John Seldon wrote treatises in favour of mare clausum and soon became a principle opponent of Grotius
who continued to espouse mare liberum
 Grotius argued that the route to India did not belong to the Portuguese by virtue of occupation,
that the sea was the common good of all mankind, it could not be occupied any more than air,
the sea was re extra commercium, it could not become the property of a person
 The arguments applied only to the vast oceans and not to land-locked seas or bays etc. pg. 267
Fall 2007 Muniz-Fratecelli Foundations Summary
 Seldon countered saying that one could occupy the sea just as you could land, that control of
the sea meant not control of the element of water but over the geographical sphere that was
unchanging. He also detailed historical dominion over the British seas
 First half of the 17th century Spanish power began to wane.
 England entered the next stages of European history as a political entity respect for which was almost entirely
based on its sea power pg. 274
Neutral Rights in Wartime
Demise of the sovereignty of the sea and the changed meaning of the sea ceremonial
 In the 18th century controversy in maritime law was focused on the “Rule of War of 1756” and the Doctrine of
Continuous Voyages pg. 404
o Rule of war of 1756 allowed the confiscation of all neutral vessels which attempted in wartime to trade
with belligerents colonies which were closed to them, in peace time, as a consequence of the colonial
trade monopoly
 Essence was that the neutral state was allowed to travel with the enemy but not for the enemy
o Doctrine of continuous voyage held that goods having a neutral destination could legitimately be
confiscated if the circumstances implied that they would ultimately be carried to the enemy country
 These doctrines were used during the Seven years war pg. 409
“Freedom of the seas” as the freedom of neutral trade in war
 This specific dev’t of the rules of naval warfare was done until the end of the 18th century without any linkage to
the principle of freedom of the seas being made
 Linguistic linkage of “freedom of the seas” and the question of neutrality rights only emerged some time later
under French influence
 In 1798 as the Anglo-French trade war had reached its height France cont’d to accuse Britain of violating the law
of nations and in particular neutral rights through its approach to naval warfare. This usage of the freedom of
the seas slogan by Barere was adopted generally and also picked up by Napoleon. Pg. 412
 Freidrich von Gentz referred to Napoleon as the “champion of the freedom of the seas.” This title came about as
a response to Napoleons struggle against the British blockade. pg. 412
 Neutral states also picked up on this language as it was to their advantage including Russia and America.
The French Revolution: Postulates and ideological programmes relating to the law of nations
The traditional order of the law of nations shaken
 Napoleonic era did not create a new order for the law of nations for Europe
 Quasi-federal order existed for those territories under the control of the French armed forces however a state
of international lawlessness developed b/w French-ruled Europe and those parts of Europe which remained
independent
 Sanctity of treaties was problematic
 However colonial practice during 19th century especially during the opening up of Africa produced a series of
treaties between European gov’ts, companies, individuals, tribes etc and these treaties were followed with the
intention of providing titles of sovereignty
 Statements from diff sides at this time highlighted the ambiguity that followed into this century on the political
and intellectual prerequisites for the classical notion of occupation
o Law of occupation in 19th century basically espoused that indigenous tribes and other non-civilised
communities were not regarded as subjects of int’l law and thus their lands could be occupied by
civilized powers
o Other point of view was raised at the Congo conference where a rep from the USA stated that modern
int’l law recognizes right of native tribes to dispose freely of themselves and their hereditary territory
pg. 550
Fall 2007 Muniz-Fratecelli Foundations Summary
Freedom and seas under British Maritime dominion
Britains role in the law of naval warfare
 19th century of freedom of the seas can be understood against the backdrop of Britain’s claim to Maritime
dominion
 It had two elements
o Actual freedom of intercourse on the seas and world trade
o And freedom of choice in relation to naval warfare
 Specific restrictions of freedom of the seas through British world wide sea power were only indirectly embodied
in 19th century law of naval warfare. The rules were rarely acknowledged as Britain was often unwilling ratify the
important international agreements in this area (ex: 1907 Hague Convention Respecting the Rights and duties of
neutral powers in maritime war, and the 1909 London Declaration relative to the law of naval war)
Piracy: the fall of the Barbary States
 Piracy on the seas from the North African states of Algeria, Tunisia, and Tripoli in the Mediterreanen was a huge
problem
 The Congress of Vienna in 1815 tried to address this issue, however it was difficult b/c the two large European
powers Britain and France had been in collusion with pirates paying them off with large sums to ensure the
passage of their trade ships, thereby allowing the pirating of the ships of others
 Not long after the British changed their position (in fear of French expansion to North Africa) and urged the
Congress of Vienna to allow them a mandate to fulfill the anti piracy, anti slavery resolutions
 The attempts to curb Algerian piracy were not successful until French conquest of Algiers in 1830. pg. 553
 As true meaning of piracy became less of an issue in the 19th century it became important to deal with acts that
were not actually piracy but could legally be treated as such. 4 kinds of quasi piracy in international law included:
o The African slave trade
o Acts of force by an unrecognized rebel gov’t
o Ship of which the crew had mutinied
o Illegal privateering where for example a captain had acquired letters of marque from both belligerent
parties
Quasi piracy: The fight against the slave trade
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Feb 8 1815 Congress of Vienna issued a Declaration on the Abolition of the Slave Trade. Treaties with Portugal,
Sweden, Denmark, Spain, the Netherlands and the US had gathered support for the international regulation of
the slave trade
They stated in the Declaration that “the commerce known by the name of the slave trade has been considered by
just and enlightened men of all ages, as repugnant to the principles of humanity and universal morality” pg. 554
True motives however behind British will to abolish slave trade had more to do with economics than principles of
justice. Just previous to this in 1784 the British House of Commons had stated that the slave trade was necessary
for every European nation, and good for the prosperity of the nations
They changed their position due to several social and economic factors including the seccesion of the North
American colonies who had been crucial to the success of the British plantations in the West Indies. It was
difficult to procure the provision necessary for the plantations without the help of the American colonies and
Britain feared that they would soon start to reap the economic benefits
Britain didn’t actually abolish slavery in their own colonies until 1834 pg. 558
The United States was not so eager to participate in the abolition movement and 1820 Chief Justice Marshall of
the US Supreme Court wrote in “the Antelope” decision that the slave trade was permitted in int’l law and that
no state was in a position to declare in a manner that would be effective to other states that it was illegal or an
act of piracy. Pg. 563
The US refused to accede to the Anglo-French treaty system of 1831-32. In fact the British treaty system
underwent a crisis after the conclusion of the Quintuple treaty in 1842
This raised problems for British patrol ships who had to allow slave ships bearing the American flag to pass
Fall 2007 Muniz-Fratecelli Foundations Summary
o At this point it followed from the principle of the freedom of the seas that no ship was authorized to
exercise sovereign rights against a ship of foreign nationality on the open seas pg. 565
o It was Britain’s aim to try and enforce a right of “enquette du pavilion” in conjunction with and under
the cover of combating the slave trade
 Britain finally achieved success with the US under great pressure from their Civil War. The United States acceded
to the Quintuple treaty and agreed to having ships tried by the national courts of their captor states
 Under pressure from the Civil War the US followed the British model and abolished the slave trade in 1834,
through the 13th amendment to its constitution in 1865.
 Slavery cont’d in international politics however, with the slave trade to the Arabian and Persian coasts and as
well as the internal slave trade from the Sudan to Egypt pg. 567
 Final settlement of the entire issue came at the Brussels Conference of 1890 with the so called “Anti-Slavery Act”
o It allowed for the signatories to have a right of visitation to the others ships within a very limited zone
Quasi Piracy: The Naval forces of rebels and unrecognized states
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Legal qualification of the use of force by rebel warships and the warships of unrecognized governments had
particular political and legal relevance
At this time international law only authorized actions against pirates on the high seas
International law adhered to the conception that political enterprises could not be piracy in the international
law sense of the term. Pg. 570
o There was a belief that “treason was not piracy”
o British int’l lawyer W.E Hall wrote that “though the absence of competent authority is the test of piracy,
its essence consists in the pursuit of private as opposed to public ends.”
However at this time states were basically free to define the concept of piracy within the sphere of their
national legislation according to their own discretion. Pg. 572
Law and dominion of the sea: The decline of neutral rights
From neutrality to “Non-belligerence”
 In the transition b/w the two world wars the freedom of the seas remained one of the primary, generally
accepted principles of international law
 Freedom of the seas in a new sense which related above all to the freedom of neutral trade in wartime, was a
crucial aspect in US President Woodrow Wilson’s “14 Points”
 By 1918 British cabinet approved a memorandum from the first which strongly opposed the freedom of the seas.
The US warned the British gov’t that they could not tolerate an overwhelming British dominion over the seas
 British/American issue cont’d and the US proceeded to build up their naval armaments becoming a leading sea
power pg. 632
 US became more aware of the fact that British dominion of the seas had been a stabilizing element in the int’l
order one which it was vital to the US to see maintained
 In latter half of 1930’s this resulted in the US adjusting their national laws concerning neutrality in wartime
o This changed notion of neutrality in the classical sense. This freedom of the seas actually renounced the
protection of the rights of neutrals
o US finally recognized this and began justifying their policies on a new basis of argument
o An effort was now made to develop a third possible legal status between “neutrality” and
“belligerence”. This new status of “non-belligerency” would permit one belligerent party to be favoured
over another pg. 634
Long distance blockade and economic warfare
 More than in the first World War the practice of maritime warfare in the second World War saw a rigorous
restriction of neutral rights and a global economic war in which each side disregarded the classical rules of war
and neutrality
Fall 2007 Muniz-Fratecelli Foundations Summary
 The reduction of effectiveness of freedom of the seas during the second World War was a prelude to its
restriction in times of peace.
 This became the mark of a new epoch which began in 1945
Law and dominion and the sea: The “common heritage of mankind”
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Character of the int’l legal order changed fundamentally after the second World War
The legal order of the seas returned to the elementary question, to whom does the sea belong? Pg. 689
Another important matter came through the realization that oceans covered 70% of the earths surface and
contained vast resources which could be exploited
Postwar development of the law of the sea was characterized by a general tendency to restrict the freedom of
the seas primarily through the extension of jurisdiction by coastal states
This was confirmed by the Geneva Convention on the continental shelf of 1958
In 1973 through the work of the Third UN Conference on the law of the sea (UNCLOS) there was acceptance of
extension of the idea of the territorial sea and the recognition of an exclusive economic zone (EEZ) that was 200
miles in breadth
o The EEZ had the effect of reducing the area subject to full freedom of the seas by about 36 percent
o These developments were strongly influenced by unilateral moves on the part of the US to extend their
zones
According to UNCLOS the exploitation of marine resources outside the limits of national jurisdiction were to be
regarded as the “common heritage of mankind” pg. 691
o The US (driven by the notion of free enterprise) did not approve of this policy and did not attend the
signing of it in 1982
o And developing states such as those in Africa didn’t benefit at all from extension of rights of coastal
states (as they are mostly landlocked)
o Indonesia was the only developing state to benefit
Law of the sea: The fate of the 1982 UN convention and the international tribunal in Hamburg
 UN Convention on the law of the sea was adopted on Dec 10, 1982 after nine years of negotiations. It is
considered by many to be the most comprehensive and important instrument in the history of international law
pg. 723
 The Convention only entered into force in Nov 1994 b/c for years important states delayed ratifying it
o They particularly did not like Part XI which declares the sea-bed beyond the limits of national jurisdiction
to be the “common heritage of mankind” and subject to an int’l legal and institutional regime for
protecting the marine environment and ensuring its utilization for the benefit of mankind as a whole
o A slight change made by the hesitating states was signed in July 1994 and stated that “political and
economic changes, including market-oriented approaches” could affect the implementation of Part XI
 The International tribunal for the law of the sea seated in Hamburg, is an autonomous int’l organization and not
an organ of the UN
 It has a special Seabed Disputes Chamber
o The sources of law on which the tribunal bases its decisions include; the Convention on the law of the
sea, the Seabed agreement, as well as the int’l law of treaties, custom and general principles of law
o It has competence to prescribe binding provisional measures
o Still too early to tell how much authority the Tribunal will have and how its decisions will be interpreted
 There is also an International Seabed Authority situated in Kingston, Jamaica.
o It has an Assembly, Council and Secretariat and an organ called “the Enterprise” which is charged with
carrying out exploration and exploitation activities. pg. 724
Fall 2007 Muniz-Fratecelli Foundations Summary
My conclusion/What’s the point??
All of this is to say that issues of maritime law (even before it was even considered as such) have been at the
forefront of international law and international relations since the very beginning. And we can see the place of
the law of the seas ifn many crucial and important historical developments. As Prof. Muniz-Fraticelli stated in
class, the law of the seas is a way of understanding the development of international law.
Class Notes
- positive/aspirational law: principles of law that are not backed by a particular state
- international law in the absence of a world state is always flawed in the making  it is the will to order the
relations of states in a legal fashion
- how do you define a neutral state? why do we even get to the point of defining that legal category?
- international law is an expression of the prevailing of the given interest at a specific time  there is nothing to
int’l. law other than aspirations
o then why do states claim to follow even when it looks like it’s against their needs?
- custom is part of int’l. trade law and the rest of it; developed my merchants who made sophisticated norms and
payments on a customary basis
o the code of Napolean is the Coutume (custom) of Paris
o violation of customs has sanctions
- democracies tend not to go to war with each other
November 26, 2007
Foundations Lecture- International Law
The law that applies outside a countries borders.
Int’l law as a legal tradition in itself.
 In part b/c it applies outside the geography of the states
 If two countries have diff legal traditions the law on int’l issues cannot just be from one country
o You end up with a mixed kind of law that takes from diff sources. A compromise
 Int’l law as we know it today is the historical conversation of experiences, struggles etc. these have shaped the
states categories of themselves and others.
Brief History
 Where does intl’l law begin.
o It depends on who you ask economist, lawyer, philosopher
o There are references to int’l norms starting in the earliest legal texts that we have. Ex: Athens (treaties),
hieroglyphics, etc.
o There was no cohesive int’l law that passed on from Athens/Sparta to now.
o We should really start with Rome
 Romans didn’t call it int’l law. They were dealing with tribes, invaders etc. they spoke of it as a
law of peoples. People as opposed to individuals. They called this law jus gentium
 It was diff from what we see as int’l law today. Now we have relations b/w nation states
(public int’l law)
 They had this concept of organizing groups in relation to one another. The law of
peoples had to do with application of particular norms
 In roman times the kind of jurisdiction that had to do with territory (nations) it was
important but the person was more important at this time. Personal law. The law
followed the person.
 Through early middle ages… it became imp when it was dealt with by certain writers.
 Writings of Aristotle were rediscovered in the west (sometime before the code of
Fall 2007 Muniz-Fratecelli Foundations Summary
justinian was discovered in Bologna)
o Aristotles work was revolutionary.
 Thomas Aquinas. Develops certain principles for what it means to have a law. Ex:
promulgation, laws have to be public. not secret or decided after. It has to be fair not
despotic decisions.
 Also said that laws have to be fair, for the public good. Idea that law
had to be argued, accessible to the people. This dev’t of argued law,
explained, law being developed with the people, not just proclaimed,
decided.
 Until Europe is shaken out of its isolationism (encounter with the Americas). This shifts
everything into high gear. It’s an alien understanding of who they are, what they are dealing
with. What morals should apply.
 The founders of int’l law (according to legal historians)
 15th and 16th century
o Bartolomi de las Casas (title of defender of the Indians)
o Francisco de Uitoria
o Francisco Suarez
 They were Spainards, Spain and Portugal arrived first)
 Projection of sovereignty to a foreign place where boundaries haven’t been drawn. The
discovery of Americas posed a problem. This led to a lot of theorizing that led to int’l
law ideas
 Bartolomi de las Casas
 Theorizing about what it means to be a subject
 Aboriginal issues
 That there was a condition of humanity that couldn’t be set aside for the furtherance of
one nations goal.
 Wasn’t saying that Aboriginals were equal or that they shouldn’t be converted
nonetheless. But there was an idea that they were people and there was a moral question
 One of the fundamental ques was could the Dutch (who had no territory) go through Spanish
seas to reach and go trade with English. Other issues like this. just war, what to do with slaves,
can they be traded to other countries, can they ever be set free.
th
 Grotius 17 century
o Doesn’t conceive of himself as a theorizer. He was a lawyer. He dealt with issues of getting property
back Portugese
o Develops a theory of the sea being free. Doesn’t belong to anyone. Being available to everyone for trade.
o Not what he argued but how he argued it.
 Argued in terms of natural law. That there is an amount of freedom. He argued a mix of public
and private law.
o Idea that one of the fundamental rights of nations and peoples is trade
o Same time as a process of economic liberalisation is happening.
o They began to remove some of the theological language from ideas of law and natural law
 Made natural law more accessible. Took it away from the Christian roots it came from
 Enlightenment
o Moving away from religion
o Kant
 Was not explicitly a legal philosopher. But he came up with a specific idea about the law as an
object and the means to get to it.
 Liberal theory of int’l law- kant was the most famous who brought this up (wasn’t the first or
only one)
 Not how do we conduct ourselves in war, but how do we stay away from it. Have peace.
 Peace of republican states.
 So int’l law which is barely applicable inside certain areas, is now projected out to all
nations. An idea of an int’l community
 Doux commerce- commerce will eventually lead us to peace
 Commerce civilizes
Fall 2007 Muniz-Fratecelli Foundations Summary
 Voltaire- in the stock market the only infidel is he who has gone bankrupt. In other
words no one should care what religion you are when it just comes to trade and
commerce
 Produce for the purposes of trade instead of fighting. A bullet is a waste of metal that
could have been used for something else.
 Institutional arrangement b/w countries so they don’t have to go to war with each other.
 Another side argued that when it comes to protecting trade people will get up in arms about
things and this will lead to war
 Two ques should come to mind
o Does it really depend on whether grotius won the argument, whether int’l law is just policies
o The other ques is the power of rights in general.
 Some argued that citizens should have rights by way of being a citizen of a certain nation.
Human shouldn’t have rights on their own.
 Is their a relationship b/w power and right. Or b/w positive law and aspirational law (law that is
not backed by a particular state (ex: UN Charter) how binding can it be
o Answer from prof- int’l law in the absence of a state is always law in the making
o Int’l law is truly a will more than a law. An aspiration to order these types of relationships in an
ordered way.
 Will to order int’l relations by law. It enters into the purview of national law. Creates a desire
and an interest in one country to protect their interests and those of others.
 So that we don’t end up with constant wars.
o Some say that its just int’l politics and it only retains its power when it is backed by a state. Just an
expression of the interests of a powerful power at a particular time.
 Then why would states claim to follow it, if its just the interests of the prevailing power? Do
they have a choice.
o Other ques: why would a state like the US bother to try and legitimize invading Iraq when technically
any country can do whatever they want. How have we reached this point, where states adhere to an int’l
law that is binding only by the will of people who bind themselves to it.
 There must be a normative element that the realists don’t quite get
 Prof- the more moral argument or justification for going into Iraq is the human rights argument,
but they used the W.M.Destruction which was the more legalistic argument. Why?
 There was more precedent in int’l law for invading for WMD as opposed to just moral
arguments.
 They wanted to get more people on their side so they could reduce costs, have a stronger
force going in.
 What makes int’l law? When it starts to look like law.
o Law is not the form that it has or takes, but whether it is backed by force.
 Customs are incorporated into law. Civil codes say that customs should be followed where it necessary.
o Customary law has sanctions. It forces you generally to follow certain norms. Social pressures.
 Most states follow int’l law most of the time.
Class Notes – Plenary Session
Professor Glenn
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no sharp boundary of a legal tradition, same thing with the flow of each tradition
o not sharp categorical closed spheres of what tradition is
as lawyers we interpret b/c we have to but we do not create law, we attempt to use what we are given
everywhere in the world is the idea of a legal system  ¾ of the states in the world are corrupt states where
judges take bribes
o national systems are everywhere but you must understand how the legal systems operate: can’t say that it
either exists or doesn’t exist b/c there would be too much variation of their acceptance in other parts of
the world
 must thing of them in their degrees of operability
 idea of a legal system as a positive construction is never going to explain the legal systems
Fall 2007 Muniz-Fratecelli Foundations Summary
within the world
 what will explain this is a broader legal tradition within the world
- any legal system that exists is compatible w/ the legal traditions within the book
1) idea that you can impose limits on one-self; what happens when you don’t respect the principles
2) rational elements in the juridical elements
a. talks about the conditions of law of us with others
b. a relation with the exterior world in general
c. a projection of an ideal world in the law
 his relations continue with society as he poses himself question in creating the law based on his past
experiences
is the writer a positivist or someone that accepts radical legal pluralism?
Provost:
- Looking at something closely enough allows you to find inconsistencies
- A legal tradition is a question of stepping back
- Chose not to use a microscope for certain parts
-
1) The possibility of auto-limitation (ex in Constitutional law). Does it necessarily need to be controlled
judicially?
2) The law addresses our relations with others/relational aspect with outside world. Way to define ourselves
compared to outside world.
3) Is Kasirer a raidcalist of posivitist.
Robinson is not alone, there’s the presence of the rest of the world that’s waiting for him to come back. This
hope of returning expresses well a continuous relationship with society, which is nonetheless suspended. Can
this person auto-limit himself completly?
Anker:
- Internal multiplicity of a tradition
- Law as a unitary existence
-
Who is the other in solo idea of the law?
Fuzzy boundaries
Muniz-Fraticelli:
- Legal traditions have imaginary universe that goes back and forward in time and they often bridge different
legal systems
- Converse on a systemic level and not necessarily a traditional one
- Settling on the present institution may be a way to move forward
-
You can have obligations as an individual even when you’re alone
I should not use personhood in myself only as means but also as an ends
Glenn:
- Western legal tradition: overstates similarities. Not simply one legal tradition. Still identifiable civil and CML
attitudes.
- Theoretical concept of legal tradition: not enthusiastic. Against idea of drawing large theoretical models
- Jewish law: priority of practice rather than priority of theory. Arguably true about all legal traditions except
CML and CVL ones
- Ability to think the way other people think becomes very important
- Notion of particular traditions is an inevitable process of categorization
Fall 2007 Muniz-Fratecelli Foundations Summary
- “we interpret because we do not create the law” part of not making cases your own, not imposing your own
view on what the law should be
- We interpret because of the necessity of lawyers looking beyond themselves, look to the material of a tradition
to know how to proceed within it
This Summary was donated to Pubdocs by Mercy Mutale, Stevi Papadopoulos and Michelle Gabowicz.
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