Comparative Law Outline: Ewald-Fall 1998
5 Legal Systems: 3-5 becoming less significant
1. Common Law: from courts in Medieval UK-English-speaking world-won’t
cover
2. Civil Law:
3. Socialist System: USSR-now just China, Cuba, Vietnam, N. Korea-no longer
wide-spread-won’t cover
4. Religious Law System-Islam: may coexist with civil law (Indonesia) or
common law (India, Pakistan)
5. Religious Law System-Indig: see 4
Civil Law: not a single legal system, but patchwork of legal approaches with same
features-5 characteristics:
1. French Approach: typically where Fr. spoken: Quebec, Louisiana, Fr.,
Africa-black letter law, procedural, legal practice, etc…
2. German Approach (Central european approach): German, Swiss,
Austrian-influence E. and C. Europe via Austro-Hungarian empire, Japan
adopted German code in 1900-private law heavily influenced, Taiwan and
early Chinese too, Turkey took Swiss civil and German code
3. Iberian: Spanish, Portuguese, latin-american-mix of 1. and 2.
4. Roman-Dutch: influenced former Dutch colonies (Indonesia, S. Africa)
5. Italian:
 some not covered: Scandianvian (civil +), Scottish-not common or civil, former
USSR-western influence, but not civil
 we will focus on Fr. and Ger. models-2 extremes of civil law-rest combine these
Approaches to studying foreign legal systems
1. pick out black letter rules from several systems and compare: problems
a. too many individual rules-too hard to make comparisons
b. basic black letter rules are not different enough between systems to make
meaningful comparisons
c. rules as they exist today don’t show why they were picked over othersbears on usefulness of black letter rules
d. if all you know is black letter rules, you’ve left aside key questions: how
law developed, what creator wanted legal process to do.
2. broad philisophical approach and historical values underlying rules: hope
for understanding of how to deal with lawyer of another tradition, and deeper
insight into US law
Chief Characteristics of Civil Law System:
1. In civil system, have code enacted by legislature, while in common law system,
courts create rules
not clear distinction
now many common law juris. have codes.
bulk of civil law systems also only recently codified.
2. Civil law distinguishes more between private law (torts) and public law (const.) than
common law
3. Nature of Judiciary: European Civil System: career choice, much less power or
prestige than common law judges
4. Nature of Academics: Civil law systems give more authority to legal authorities, less
to precedent
5. Legal Reasoning: in civil systems is more formalistic, logical, etc… than common
law systems
How did differences arise?
 2 systems developed from Europe that was linguistically, socially,
religiously, homogeneouswhy?
 2 events:
1. Conquest of UK by Normans: 1066: created circumstances of unity to
control all of UK and administer laws-centrality didn’t exist on continent
 consequences for common law:
a. common law was ad hoc: developed to deal with specific circ.-laws in
action, not theory-no scholars
b. judge imposed individually, not from sovereign out of one book
c. in UK, legal education placed in hands of judges: apprenticeships to
judges or lawyers-not to universities
2. Rediscovery of Corpus Juris in Florence: 1100 A.D.: law at end of Roman
empire-500 A.D.
 became intensively studied in N. Europe via University of
Bolognaspread throughout Europe in 1300’sItalyFr.Holy Roman
Empire
 Continental europe’s laws not unified, controlled centrally like in UK until
18th centurythus continental system functioned by interpreting Roman
texts
 consequences for civil law:
a. approach to civil law much more theoretically basedno concrete
case, but scholarly interpretation
b. law developed by scholars in universities rather than by legal
practitioners
c. legal education took place in universities at hands of scholars
Greek Law: despite influence in philosophy, art, etc… little influence on Roman law
 organized in politically unique manner-hundreds of city states-polis w/ own
governments-avg. 5000 adult, free men-20,000 total
 Athens: 20,000 afm, Sparta next biggest
 had slavery, treatment of woman as lacking all legal status, segregated in
household, owned only clothing and personal slaves-had to be under care of
guardian if woman became heiress
 Sparta- let women own property
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governed selves via local traditions and rules-own ideas about transactions,
etc…
 some famous laws given, but no uniform legal theory-disputes thrown into
assembly
Egyptian Law: no effect either
Roman Legal History:
 Rome founded 753 B.C., first legal writing in 451 B.C.12 Tables of Ancient Rome:
1st writing down of laws in Rome
 Classical Period of Roman Law: 27 B.C.-200 A.D.
 can’t make generalizations about Roman law
 most distinctive and lasting contribution by Rome:
 Before Rome, law was rules governing specific cases: Rome created legal principles
to go beyond particular case, create rules for new circumstances as they came up
 persistence of effect on European legal systemRome conquered Europe 3 times:
armies, church, voluntary adoption of Roman law in late middle ages
Periods of Roman Law:
1. Classical: law of city of Rome and Empire-ancient law: governed Rome 1300 years735 BC to death of Justinian in 565 ADthen prolonged gap in West where Roman
law was dormant-still some local existence in Italy, in effect in East.
2. Second Life: 1100-began in N. Italy-revival of study of Roman law w/ discovery of
Corpus Juris of Justinian-ideas spread throughout Europe-up to end of last century
Differences Between Periods:
1. Ancient law was based on either edicts from magistrate or interpretation of law by
legal scholars: new period law based on interpretation of Justinians C.J.; also, no
authoritative law book in early period
2. In Middle Ages, in addition to Roman Law, had Canon law for some cases (heresy,
amnesty, marriage, family law, contract law); feudal law, commercial law, maritime
law, trading institution law, tribal law
3. Later Roman Law (2nd period) took place over many centuries, received into different
areas at different times and waysthus less uniformity than centralized authority of
empire
Roman Political History:
1. Period of the Kings: 735-510 B.C.: King (real power); Senate (advisory body of
only patricians); assembly
 King was also high priest: fas: religious law; ius: secular law-only Romans
made this distincition
 510 B.C.: revolt of patricians against king-king thrown outnot democratic, but
rejection of Etruscan king by nobles
2. Republic: 510-27 A.D.-early and late
 Early: (510-367 BC): Rome was one city among many others-key conflict b/t
patricians and plebians-forbid intermarriage, etc..
 plebians didn’t like it, gradually got patricians to back down-eventually plebes
could be magistrates
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367 B.C.: law passed making one plebe a magistrate-Rome no longer classoriented, but ruled by Senate of old patricians and plebe families
450 BC: law of 12 tables: during class struggle, plebes complained they
didn’t know what law was-was secret, used by magistrates, particularly
debtor-creditor relationships
 legend says delegation of 10 wise men were sent to Greece to study
legislation (Salonica code), came back to marketplace and set up 10 talbes
w/ law-2nd time w/ 12 tables-could be myth or happened later
 tables destroyed in fall of Rome, only fragments survive
 composed of specific commandsmostly crim. law (early state)-use
of force, death penalty
 ex.: treason-crucify; murder: execute; parecide: put in sack with dog,
cock or monkey and thrown into sea; arson: burned to death; nocturnal
meetings in city, perjury, crop destruction, witchcraft, debtsdeath
 little about private law, contracts, etc…
Late Republic: once class conflict ended-Rome rapidly expanded-2 wars
with Carthage-destroyed 126 B.C-Rome ends up with provinces all around
Mediterranean-only power therebecomes more empire like
 big changes:
 Rome had to administer large territory via large standing army
 big contact with Greece: incorp. thought, art, etc..
 introduction of slaves-worked on large estates for families-plebes
became urban proletariat-always potential for revolt
 change in govt structure!!!
Governmental Structure
 at time republic began, kings replaced by magistrates
 initially just 2 called consuls: took over only secular power, waged
wars, financing, administered justice
 elected by assembly
 comitia centuriata: duplicated military organizations-powerful,
wealthy families had more powerbecame elected consuls
 Senate: council of elders-ex-magistrates and heads of important
families-300-900-avg. 600
 initially appointed by consuls: in theory, was advisory body to
magistrates, in practice, was most powerful body
 Consuls elected by assembly for 1 year offices: also limited by fact
each consul had full imperium, could veto actions of other
 citizens accused of capital crimes could appeal to assembly-consul
couldn’t impose capital punishment in city
 system became burdensome: 367-praetors added to relieve consuls’ burdens
 1st one was urban praetor: administered justice b/t citizens
 laterperegrine praetor: justice b/t citizens and foreigners or 2
foreigners
 praetors enjoyed full imperium toobut subject to veto of consuls
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edials: developed Roman law of sales
censors: only became one after term as consul: didn’t have full kingly
power, but instead determined voting lists, who was eligible to be in
Senateif you acted immorally, you were censored and disenfranchised
 Tribunes: of plebians: negative power to veto acts of magistratesoriginally were check on power of magistrates, but power wainedway to
start off political career-power eventually taken over by emperor
 Dictator: possibility to appoint consuls in order to respond to
emergencieshad restrictionseventually dwindled away like tribunes
 had to resign when threat subsided
 had to resign after consul’s office who appointed him expired
 6 mo. max
 system had lots of checks and balances
3. The Principate: 27 BC-284 AD (Augustus to Diocletian)republic plagued by
disruptive character of people, administering empire, etc…
 repeated civil wars, uprisings b/t rich/slaves and plebesended in Actium, battle
where Caesar Octavian took over kingly reigns of rome, but didn’t change
constitutionno formal change in govt.
 Octavian regularizes power in 27 B.C, but concentrates magisterial power into his
hands for lifetook power of consuls, tribunes, supreme priest
 to back up legal power, acquired right to keep army in Rome itself-not allowed
before thisstabilized civil war conditions
 Senate degenerates to mouthpiece for emperor, assemblies wither too-gone by
100AD
 system broke down under emperors-assasinations, civil war, debauchery, emperor
was auctionedbrought to partial end by Diocletian
4. The Dominate:
 Emp. Numerian was fighting Persions-left day to day running of empire to Ape,
assistant-army stopped, eventually emperor found dead, Ape had been issuing
orders-Diocletian killed him has murderer (probably was Dioc.), army declared
Diocletian emperor
 Principle reforms in the Principate
1. title of emperor becomes dominus (lord) from princep (prince)-1st citizen:
to diminish risk of civil war, vestiges of republic swept away-civil service set
up under emperor
 power came directly from position within emperor’s regime, no
independent power base (nobility, etc…)
 people held power only as emperor’s servant-no indep. power base
 under influence of middle east territories, Romans copied their monarchyabsolute sovereignty-couldn’t be challenged-wore crown, visitors
grovelled
2. 2 emperors-east and west: easier to administer far flung empire, made it
easier to defend against invaders
 2 emperors in east and west-284-565-each had full power over empireedicts issued in name of both emperors
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Constantine: next major figure
1. issues edict of toleration of christians, later converts himself
2. changes capital to Byzantium-western empire collapsing-Rome sacked
several times-empire formally splits in late 300’s
 last emperor in West falls in 476 AD-end of Roman Empire
Early 500’s: Justinian-comes to power-very strong-reconquers much of Italy
and establishes something of old empire-falls again after death
in west, during dominate: danger of invasion, decline in education of people,
care from state, admin. of law
colonate: in dying days, emperor had burdensome taxes-rich land owners let
peasants work land in exchange for protection from tax collectors-beginnings
of feudalism
The Roman Law: Private Law: tort, contract, property, etc…big contrib. by Rome
Why didn’t Roman Administration of Criminal Justice Law thrive after empire too?
1. From early days, criminally convicted could appeal to
assemblyadministration of justice ended up in hands of populaceno
systematic legal rules developed
2. Criminal law later administered by Imperial Courts, not interested in
procedures and rules
THUS: no lasting contribution by Rome to criminal law.
Sources of the Law:
1. Statutes: express declarations of the law by the legislatureminor source of
law for Romans12 tables: very formalistic, narrow, brief
 later republic-only 30 statutes in 400 years
2. Senatus Consulta: non-binding recommendations by senate to magistratesnon-binding legislationas Senate withered and became mouthpiece of
emperor, pronouncements of Senate actually became more important
3. Senatorial Decrees
4. Imperial Decrees-Decreta:
a. edict: broad policy or issue-Cariocalla-Antonine Constitution-all
inhabitants of the empire are citizenssubjected Romans to direct
imperial power
 mandates: administrative orders to imperial officials (governors, civil
servants, etc…) relatively unimportant to private law
 decisions in individual cases: decision of emperor sitting as judge
1) decreta: decisions of emperor as judge-unwritten advisory
opinionbig effect on private law
2) rescripta: written reply to a question-official, public body, or
person wrote to emperor (imperial household)
b. Edicts as core of how Roman private law was made:principal method
of legal rules and changeedicts of magistratesvery formalistic in
Republic
 2 kinds of law
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1) Ius civile: old law of Rome (kings, rep., principate), trad. set of
rights of citizens
2) Ius honorarium: law administered by praetor
right through Principate, Roman’s didn’t purposely innovate law-thought they
were interpreting law and customs of ancestors-ex. if father sold son 3 timesson independent
Roman lawyers: saw rule as useful-if dad wanted to set up son independentlyget friends together, sell son 3X’s quicklyhe’s manumitted
 but not purpose of rulebut lawyers didn’t want to change or abolish
ruleassembly could not do anything against
Ius civile: bound up with citizenship of city-as city expanded, empire grew,,
meaning of Ius civile expanded-became civil law as contrasted with Ius
Criminalus-criminal law
laws administered by praetor: Ius civile and Ius honorarium-controlled
administration of private justice, judicial remedies
 formulary system: no rights or privleges, but formula to deal with issues
Late republic: urban praetor acquired right from assembly to create new
formulas-in effect, NEW LAW!!
 Roman system was now much more flexible
How system worked:
 Urban Praetor, at start of term, announced praetor’s edict
 matter of judicial policy or circumstances under which he’d grant
judicial relief
 reflected praetor’s individual choices about how they’d interpret law
 heavily contrained by nobles and other bodiesno radical change
 also, urban praetor were mostly not professional juristsrelied heavily
on previous decisions and jurists for decisions and policy of edict
 thus new edicts were tweeked only a little
 Praetor, into principate, was not bound by edict-could change mindwhen power was removed, marked end of development of Ius
honorarium
Roman Trialscivildivided trial, split process
1. 1st stage: before urban praetordraw up formula of case-order from
praetor to judge (iudex)You, iudex, must investigate caseIf X, for A,
if Y, for B.
 formula given to iudex after parties present cases to praetor
 once entire case of both parties in writingreduced to formula
 parties went to list of wealthy, male noblesiudex’s were lay people
2. 2nd state: in from of iudex: parties represented by advocates (debator,
not lawyer)no evidence rules-trials resolved in a day
 broad discretion as to law and facts
 no appeal, no statement of reasons required
 Iudex, as layman, turned to jurists for lawrather like modern jurors
 NO PRECEDENTIAL FORCE
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Peregrine Praetors: administered law governing foreignersIus gentium:
law of all peoples of Mediterranean-uniform throughout empire-as people
came into Rome as empire grew, foreigners needed to have law administered
to them
 No abstract natural law: Romans say it as concrete, real rights common to
all people of empire
 some of Ius gentium found way to Ius honorariumgood faith-bona fides
 Urban Praetors: elected 1 year, had power to issue edict, but not bound-could make
up new rules, formula of private law at willnot surprising emperor didn’t like this
 new restrictions:
1. Praetor had to follow own edict: too much discretion otherwisewent
against foundation of praetor’s (magistrate’s) imperium powerimmediately
reduced innovation in law
2. Edict consolidated into final form in name of emperor (during Hadrian’s
reign-120-140AD): praetor no longer had right to change edict-edict had
already not substantially changed for many years-praetor no longer
promulgated law, only enforces it-no longer source of law, but servant of
emperor
 Romans were big traditionalists: original system passed down law but
gave flexibility-powerful device to change law while keeping law
traditionalno longernow changes come from changes in interpretation
of law already written, or granting of new rights and remedies by emperor
through imperial leg.
3. Emperors abolished split process b/t praetor and iudex: too much power
to layman outside of emperor’s control-double trial replaced by single judge
hearing entire case, and judge no longer layman, but professional servant of
emperorjudge now had power to compel parties to follow judgment
MAIN SOURCES OF LAW CHART
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Praetorians: aristocrats-no special training in law
old rules ritualistic, religious, silly-grab ears, dance naked, etclegal validity through
formalistic processex. to sell/buy object: seize object, strike scale, declare object is
mine to buyexact words required or no transaction-lead to elaborate system of rules
how did Roman’s working with this system and annual, independent, sketchy edicts
create strong legal system?THE JURISTS!
The Jurists: tremendous impact on law-somewhat like judges-worked out key private
law used today
 in Republic, admin. of law done by college of pontiffs: priestly class
 theocracy? nolaws not held secret, administered religiously (Egypt)
 pontiffs really were administrative officials who were priests on the side
 over time, power got to lay hands of praetor
 at same time, institution of lay jurists developed-legal scholar/lawyer/civil
servants
 came from high nobility
 clients came to jurists for advice-marriage, sales, suits
 aristocrats gave advice for free-honor and respect-gratitude of
peoplepart of career in public servicecursus honorem
 jurists typically held other administrative functions/positions toochanged
over time
 basically statesmen with scholarly interest in lawgave legal advice to
clients, enterprises, iudexs
 not courtroom attorneysnot within their dignity to argue before lowly lay
personage of iudexleft that to advocates who were paid!!! for work
 iudex would call together council of jurists to give legal advice to iudex to
accept or reject
 during Principate: like praetors, jurists were independent source of power in
empireemperors wanted them controlled
 wiped out senatorial nobility, established imperial one
 during empire, jurists became imperial nobility-in service of emperor, but still
interpreted law
 Augustusintroduced notion of imperial jurists-seal of approval of emperors
 jurist’s word no longer legally bindingmore likely, listen to this guy, he’s
right
 jurists came into own as praetors withered
 Principate was classic period for jurists90% of existing writings from then
 group of jurists for 275 years of principate small-only have 70 names-most
only names survive
 greatest jurists held key jobsprefect of praetorian guards, governors,
generals, etc…
 Carracala executed jurist as serious threat for not approving of murder of
brother to get throne
 jurists were not scholars interested in theoretical law, but practical application
within Europe
Jurist’s Style of Legal Reasoning: Greeks approached law and ethics from abstractwhat is perfect system?
 Roman’s wanted practical, workable solutionsno interest in theoretical
 legal writing concentrated on details of particular case
 lots of warning against abstraction
 terse, unadorned compact latin, reduced arguments to basics
 very traditionalist- merely refining, not changing law
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thoughtful in terms of circle of problems-solve one to lead to nextachieved
generalities by whittling away details to a skeleton and using it again applied
to next whittled down case
Education: not formal, mostly by apprenticeship-in early Principate, there were 2
schools-we don’t know if they were styles or actual institutions
importance to later Civil Law: they wrote about law-textbooks, commontaries on
final edicts, earlier jurists, emperor’s and senate’s statutes, problematic works-how to
deal with problem in law, extended monographs on the law
 decisions in actual cases (iudex) didn’t interest jurists-they looked at hypos
 little of original literature surviveswhen Justinian created CJ, he forbid people
to look at previous law-sources abandon or destroyedjurists ripped up, cut and
pasted, physically destroyed older works
 no one even knew about split trial until one person found Garius’s textbook under
a medieval transcript
Classical period ended abruptly
 decrease in education; expansion of citizenship to whole empire mad it harder to
say what law was
 jurists later replaced in Dominate by civil servants/scribesanonymous writings
in name of emperor
 rise of vulgar law: mix of tribal and Roman practice of regions;
 in west: had overlapping legal systems within same territory; law applied
depending not on what territory you were in, but what nation you were
member oftribes conquered people under Roman lawlaw applied to
romans, tribes there; local customs
 in east: decline of law too, but politics not so crazy-law in latin, but language
of east was Greek; skill in administering law declined
 law of citations: (400’s) promulgated by emperor-to decide issue, go to 5
classical scholars-if all agree, follow, if not, go with majority, if tiePapignon
 lawyers of east only had limited access to what law actually was-hard
to handle imperial orders handed out 100’s of years ago-lawyers couldn’t
get hands on them, or couldn’t read latin
Justinian: born in Yugoslavia, came to throne in 527 A.D wanting to restore full
empire-accomplished 3 great projects: Reconquer Rome and Italy, build Hagia
Sophia in Constantinople, codify Roman law
5 steps of Codification:
1. Created new compilation of edicts (constitutions): completed 528 A.D.no
longer survives
2. drafted Corpus Juris Civilis: body of civil law: 4 parts
a. digest: compilation and restatement of classical juristic law of principate
 used law faculties of Constantinople and Beruit
 16 practitioners and scholars under Tribonium
 over 3 years, extracted usable bits of classical law, reduced 3,000,000 of
text to 150,000
 work of all jurists from Republic to Dominate, Grotius and Popinium
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negatives:
1) digest is obsessively unoriginal: no commentary or critiques-if some
is, is blended in
2) not systematically arranged-no cross-referencing, etc…
 looks like Tribonium divided up classical literature into several groups of
scholars-so its was several groups put together-no centralization-less law code
than condensed law library
 tension in work b/t traditionalism of old empire-revive ancient glory of
Romeunoriginal, copy-doesn’t matter if makes sense, do it in latin too
 vs. trying to establish legal system to meet needs of modern day eastern
empireleft out split trials, etc…
b. The Institutes: short, but most influential-1st principles of the law
 like Digests, obsessively unoriginal-based on Institutes of Gaius
 crucial: for remaining, subsequent legal history, provided framework for
thinking about civil law
 3 categories: persons, things, actions/remedies; with some admin.,
crim., tacked on
1) law of person: in modern law, can have juristic person
(corporation, etc…). In Roman law, only dealt with humans,
whether they are capable of legal relations
 slave: person, but no rights
 corporation: not person, but legal rights and duties
 concerned primarily how humans moved from 1 status in law
to anotherfamily law, slave law, marriage law, etc…
a) law of the family: core of Roman legal and political life
 only full citizen under law-male head of familypaterfamilias
 only PF could own property, life and death control over
kids (really only in Republic-later limited by agreement
by family, censorial penalty, etc… to avoid abuse), sons
in position of slaves
 if sold son 3 timesmanumitted so they could own
propertyprob. son loses inheritance
 even if son not free, could own property, hold public
office
 all family relationships run through male line-PF
controls daughter, but not daughter’s kids-mother not
regarded as legally related to kids-brother related to
kids of brother, but not kids of sister
 only 2 ways to get out: wait for older males to die, get
sold 3 times
 profound impatc on marriage law
b) manus marriage: older form of marriage-pass out of power of
father into hands of hubby’s father
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legally became daughter of husband, sister to own kids, if
spent 1 unbroken year living with manbecame manus
marriagehad to spend 3 nights in dad’s house to avoid
thisthen marriage converts to other type of marriage
concept changed in Republicgenerally, marriage more a
social than legal fact for Romans
had to be citizen, get consent of PF, manifest intent to be
marriedno ceremony req, but usually done
divorce really easy-manifest intent
primary importance of valid marriage was to determine legal
status of kidscitizens? within potesta of PF
husband had no rights over wife’s personal property
dowery to hubby for marriageif she was indep. (male rel.
dead), stayed indep. after marriage, if not, still in own PF
 dowery was incentive against divorce (if hubby at fault,
loses dowery, if wife, give up portion of dowery for each
kid in marriage)
Roman’s allowed spouses to give gifts to each other to get
around itlater not allowed
 no influence on later legal thoughtChurch made it dissappear
 influence of Churchbanned homosexual conduct, adultery
c) Law of slavery: slaves had no legal rights-considered to be
inanimate objects-most slaves were agricultural laborers on
large farms or menial workers in city-barbarians captured in
wars
 slaves from other civilizations (greece, etc…) got respected
positions-child care, educator, clerk, etc…
 freed after 1-2 generationslarge population of freed
slaves
 became slave by being captured in war or born as slave
(status determined by mom)
 manumission: by will-on death of master, became citizenat this point, just can’t be member of Senate or higher
magistrates
 over years to late Dominate, as Church got stronger,
constraints placed on slave treatment (cruelty laws),
later good reason to kill laws, by Justinian, only reas.
punishment allowed-slaves couldn’t invoke law against
masters-magistrate had to
d) law of citizenship: most Roman law applied only to citizens
but influence spread application to ius gentium: in theory,
civil law only applied to citizens, soon 2 laws were very
similar, eventually ius gentium and ius civile were same

Romans generous about extending citizenship further and
furtheradded new subclasses, etc…
 Antonine Constitution: made all residents of empire
citizens
2) law of things: in contrast to persons, conceptually different
 res: thing: can be physical (stone) property, etc… or
theoretical-K, debt, etc..thus K law branch of property law
a) property: what somebody owns-your relationship with thing
b) law of succession: how does property go from one person to
another-inheritance, gifts, etc…
c) law of obligations: things owed to you-thing has relationship
to you-3rd party owed you obligation
i)
contractual obligations:
ii)
ex delicto obligations: torts, private crim. cases (crim
law only dealt with threats to state (murder, etc…)
3) law of actions: short, not influential
c. Code: came after institutes-consisted of imperial edicts and prescriptionsimperial opinionswhereas digests were juristic opinionsnothing like
modern code
d. Novels: Justinian ordered additions of stuff left out
How Roman Law Diverges From Common Law
1. Once you have consolidation of legal power in emperor, juristic opinion dries upno
independent jurists. Justinian conceived of CJ as complete, consistent body of laws
in existence.
 Common Law judges: always assume more law to be made-imperfections to fix
 Justinian thought CJ so good, he made it illegal to refer back to previous law not
in CJ-also forbade writing of commentary on CJdon’t want scholars messing it
up
 claimed monopoly for emperors on interpretation of code (Napoleon does same)
 extremely influential passage in code: No judge or arbiter must follow what he
thinks is wrong-if not decided will, doesn’t applydon’t render decisions with
examples, but with lawnon exemples sed legebus iudicandum est
 mideavals fastened on this: judges should decide in accordance with law, not
decisions of other judges-radically different from common law
2. Attitude toward statutes: somewhat peculiar vs. common law jurisdictions
 little explicit codification w/ Romans-few statutes
 idea only cropped up in east, at very end of Roman legal historytriumph in 20th
century w/ codification
 strong disinclination to accept any rules laid down by statecodes were bad,
should be avoided (until Justinian)
 reasons for hostility to codification
a. codification could lead to literal interpretation
b. codes to general-don’t deal with legal variations
c. codes could lead to errors by deciders
 thus schitzophrenic attitutde toward codification
3. Natural Law: in Roman law, all that mattered was ius civile and ius
gentiumconcrete laws applied to Romans and non-Romans, natural law was
scientific, biological law, not higher law constraining state against individual
 other notion of ius naturalelaw applying to humans, animals, and all things in
naturesex restrictions of animals
 Middle Ages: Natural Law = God’s Law
 Plato: just state one that imitates form of ideal state-theological thinkers looked
back to Greeks to enforce natureal law
 Romans: their conception of natural law could not override positive lawlaw
promulgated by emperors-delcared by urban praetor could be set aside by judge
based on natural law???NO WAY!
 laws of nature were laws of biology, not laws of God
 In West, natural law was bulwark against stateWhere Western Church became
strong: big struggle b/t secular rulers and pope-pope won-emperor can rule,
subject to law of god administered by churchleaders not absolute, could be
deposed (Aquinas-rise up against tyrants)
 foreign to Rome
 In Byzantium, emperor was head of state, church and God’s anointed
rulerany in opposition were against God-no right of rebellion (Orthodox
ChurchRussia, E. Europeczar as absolute ruler-no justification for
revolution by natural law
4. Legal Analysis: way the law was divided up
a. Romans conceived of this as relationships b/t human individualsindividualistic
 distinguished from religious law, general customs, general morality
 core of legality surrounded by, but very separate from above list
 Hebrew, early common law, egyptian law didn’t do this!
 ex. Law of Marriage: only talk about legal reciprocal rights and duties of
families, not religious or moral, although socially they were extremely
importantcensors dealt with social issues, not legal punishment
b. Roman Jurists never talk about underlying social or economic conditions giving
rise to rulesformalistic: no discussion of philosophy, economics, etc…, only
what the law is
c. Romans draw sharp distincition b/t public law of Roman state and private law
concerning relationship of one citizen to anotherhuge impact on European law
d. no big distincition b/t procedural and substantive law
 significance: by insulating body of law from social events, Romans were able to
create definitive, stable law as Greeks never could do, so when scholars found it
in 1100, they saw it so clear and definite that it gave illusion Roman law was
based on logic, not experience
 disadvantage: dry, formalistic, detatched from social realities, in which law
became petrified and stale
5. Romans were able to look at concrete hypotheticals and use basic categories to
describe what was going on.

Romans reserved about stating anything in abstractRoman theorists almost
completely avoided giving definitions of central legal concepts (Ks, expression of
will, act, corporation, state, etc…)
 no abstract legal rules-very particular, individual cases with general thoughts
behind them-never get a rule-that’s for reader to figure out
 no abstract conception of a legal system
 digest was masses of more or less related topics-no attempt to systematize
themscholastics of middle ages organized it-scribes reduced it to underlying
logical system
 Demerits: legal principles underlying cases not clear, hard to teach, no general
rule-have to know all cases-no systematic overview of law in that area
 Strengths: jurists proceeded case by case-gave law flexibility it evolve it never
would have had if based on a few, abstract generally stated principles
6. Simplicity of Roman Law: contrast with Germanic Law-Romans, unlike Germans
and common law, operated with a few broad legal categories-hesitated to mix or
create hybrids
 Rome: slave OR free, single OR married, citizen OR not
 Germanic: cohabitation, have a kid, formal ceremonyall diff. statuses
 Germanic/Common law: much more likely to build hybrids
 Adv: simplicity Disadv: inflexible-harder to deal with changed circumstances
7. Tradition and Custom in Roman Law: Romans very traditionalist-respect for ways
of ancestors-averse to radical changes in law
 not willing to adopt law and customs of other nations, even Greeks who they took
everything else from
 praetor never would have dreamed of overturning old law, jurists only elaborated
old law, didn’t change it
 familiar concept re: US Supreme Court-stare decisis
 even if assembly wanted to vote against law, vote was invalid, tradition ran over
everything
Rome and Nationality: Rome not a nation-stateimportance of unity through emperor
and law; non-nationalistic conception
 contrast with Greece: citizenship based on Greek heritage
 when empire dissolved, people still identified with itmade it easier for reformers to
revive it
 Roman notion of liberties: nation free if not ruled by absolute ruler and have some
legal recourse
 limited conception of freedom, but defended against absolutism of
eastvehemently rejected idea of absolute monarch
 citizens should share in administration of statewhen Romans conquered
people, rather tolerant of their culture and laws (made Empire stable)
 aspects of Roman Liberty:
1. constitutional notion of no absolute monarch
2. autonomous/self rule by conquered people
3. relationship of Roman citizen to state

broad sphere of personal liberty into which state could not reach
 freedom of opinion, movement, relative freedom of religion, rights of
family respected by Roman law and couldn’t be invaded by state
 Roman attitude toward authority: extremely high regard of certain positions for
example-pater familias-heads of family-can even sell/kill kids
 gradual power diminished and by time of dominate subject to restrictions
 magistrate/urban praetor
 criminal law: no concept that there must be a law in order to be
punishedmagistrate disciplines people just as pater familias does
 no concept of separation of powers-magistrate could wield exec. and jud. pwer
 humanitas: important Roman conception that certain rights attach to you simply b/c
you are humanin contrast to Greeks, who considered barbarians almost inhuman
 not same as moder b/c it is informed by Judeo-Christian tradition
 anyone who accepts Roman law is entitled to become Roman citizen
 marriage: woman not subject to husband-property separate (Greeks made woman be
dominated by husband); but not so enlightened with respect to parent-child and
slavery
Medieval Europe:
 3 factors separating Rome from Medieval world:
1. Byzantium: concept of west not ancientGermanic invasions-not entirely
responsible for downfall b/c they adopted many Roman traditions. Islamic
invasion of N. Africa was by much more sophisticated culture which saw itself as
conquering rather than inheriting rome
 cultural ideas of Rome confined to W. Europe
 Byzantium cut off from West
 as Germanic/Frankish kings, particularly Charlemagne, consolidated power,
sharper idea of Europe
 Charlemagen was seeking to establish that he had equal power to Byz.
emperor, and was also a successor to the Roman empire
 resulted in deep ideological split b/t E and WE refused to recognize W
emperor and vice versa
 sharp split that wasn’t present in Roman empire
2. Christianity:
a. conception of natural law: Romans had this in theory, but just gave it lip
service, it was inert
 now strict monotheism
 ius gentium was law after the fall, law of human sin; merely custom
b. heightened conception of importance of individual: Romans had concept
of individual, but Christianity’s emphasis on human soul and fundamental
human equality before god
 worth of individual and worth of poor, needy was foreign to Rome
 had influence in theory of propertyin Eden, everything was held in
common, but b/c of sin of avaricehad private ownership
 so private property held soley as used for public goodRomans only
though you shouldn’t harm others with your property

legal obligation to look after poor: duty of property holders to relieve
suffering of poor, right of poor to demand this
c. New conception of abstract state: Augustine-state separate from city of God
3. Barbarian invasions:
a. legal personality: law applied to people, not to territoriesthis is the reason
Roman law survived even though territories of Rome conquered.
b. idea of constraints of ruler: Romans also had this, but Germanics had idea
of law as immemorial custom of tribe
 kings not allowed judicial powers-had to consult with other tribal leaders
 kings had to take binding oath that they would rule in accordance with law
 right of rebellion-tyrannicide in some cases
 THUS: conception of legitimate resistance to unjust ruler that Romans
never had
KEY TRENDS
1. Growth of Feudalism: adulterated Roman law-provided new mechanism for legal
change
2. Influence of Scholastic Philosophy: influenced Roman Law-Middle Ages had
textbook of written reason
a. greater understanding of historical concept of Roman law than in Rome
b. Roman law interpretation became bound up with theologyRoman civil, canon,
and customary lawMedieval law
 two effects of scholasticism:
a. abstract statement of rules: Romans never did thisscholastics did
b. engaged in systematic legal philosophy: how to make law more just
Investiture Controversy: dispute b/t Pope and Holy Roman Emperoremperor lost,
had to acknowlege supremacy of churchhe was appointed by pope, could be removed
by pope if he violated law
 enforceable natural law: idea there is natural law employed against a secular ruler
 makes for sharp break with Rome
 Rome:
ius civile
Aquinas:
civil law
ius gentium
divine law (positive)
ius naturale
natural law
 natural law (law of reason): even binding on God
 Plato: God commands things b/c they are moral (not that things are moral b/c
God commands them
 Aquinas: problem: are you saying god is legally constrained to do some
things?A. yes, but it doesn’t interfere with divine omnipotenceGod can’t
make 1+1=5
 natural law is a restriction on God to make law or morality
 natural lawdivine lawcivil law
 divine positive law is something no ruler may violateif so, can morally
rebelruler governed by natural law, divine law governs civil law
 Late Middle Ages: change in theologyno constraint on God-can make anything
right or wrong by sheer willgave rise to divine right of kingsearly modern, not
medievaltotal control-no right to rebel

Other changes in Middle Ages:
 Late Roman idea of absolute power of emperor gonenow mixed govt. of
monarchy, aristocracy, etc…
 nationality: Europeans built on Roman idea, but modified based on religious
precepts
 slavery: abolished
 built up CJ to be law for all of Europe
 common learned language (latin); common scholastics, etc…
 kingdoms not the same as nationalitiesethnicity-nation state didn’t yet exist
Emergence of Feudalism as a system:
 breakdown of empire, tribes invade, decreased education, no central power, perpetual
state of local warfare
 great innovation: armored cavalry-knightcrucial to dark ageslead to several
innovations
1. 600s-700s: replacement of Roman law with local tribal customs-Roman law
survives in gaps
2. 800s-900s: esp Fr., feudal law (diff. from customary law) arosefeudal law in
latin, customary law not written down
 extent of feudalism varied (Fr. significant, Gr. more customary)
 system depended on knightsgrant land to vassa (knight) in return for military
service
 consequences of system:
1. Agreement about land for service: other parts of customary law not dealing
with this continued along side
2. Subinfeudation: In feudalism, center of system was idea of exchange-if you
were vassal, had duties to overlord, and vice versa. Overlord had duty to protect
and maintain you.
 subinfeudation: chain of command to subvassalsland held indirectly for
king
3. During 800s-900s, period of local self-sufficiency
 castles, around which economy evolved-rather than town of later middle ages
 meant local self sufficience, also govt. power dispersedmilitary, tax, admin.
of justice were all inside feudal system
 system of justice very primitive-trial by battle, ordeal, etc…
 high justice: treason, capital crimes-fairer, more sophisticated-higher feudal
officials
 low justice: local, petty officials administered justice
 How Feudalism Broke Down
 stronger kings extended authority, took it from vassals, created widespread peace
 local wars fell out as cannons, crossbows developed
 as education, canon law increased, royal courts took over administration of
justicehad Roman law to administerbig blow to vassal power
 also expansion of right to feudal appeal



1200: kings saw adv. to expanding appeal-as more cases got to
kingstheir power increased
 1300-1400’s: ius commune: combined civil, feudal, customary lawfeudal restricted to land law now
2 central topics in scholastic study of law in Middle Ages
 Civilians: Corpus Juris
Canon Law: Church Law
3 schools who studied it:
1. Glossaturs (Irnerius-1200s, Accursius-1100-1250): tremendous increase in
security in western Europe and CJ found in Pisastudy of law commenced in
Bologna
 Irnerius: latin for Verne-may be from North of Alps-people did move around
back then
 Rediscovery of CJ and Investiture Crisis, innovations in canon law all
interwoven: manuscript probably found by canon lawyers trying to find law
to support pope in fight
 Glossturs used CJ for basis of scholarship and teaching
 3 contributions:
a. edited text: created working copy-spread to Europe
b. imposed logical order on law they found: became basis for European
law
c. uninterrupted chain of development to set up system of law which
eventually became basis for modern state
 while editing, influenced by Aristotilian logic-approached law as true, rightjust had to be made non-conflicting
 own job is to find underlying harmony of law
 employed number of devices
a. gloss: inserted short comments “compare to” “this means”
b. produced lists of problematic passages
c. apparatus: lengthy commentaries on part of CJ
 tried to get students to memorize, understand text-hard to copy
 had to master arguments on disputed points-had to defend them for exams
 University of Bologna: grew, drew students from all over Europespreak
Roman legal scholarship throughout continent
 Accursius: created Accursian Gloss: summation of work so far-became
standard text for study and administration of law
2. Post Glossaturs: (1250-1300 or so): 2 schools
a. Italian Jurists: transition of law, Roman law mastered, other schools around
Europe are tracking it, have Accursian Glossso how do you apply law
concretely-Italy did it differently-most students were lay people
b. French Jurists: most were clerics or studying to be-reconciled Roman law
w/ much more of customary law than Italy, where Roman law had survived
3. Commentators: 1300 onward: mostly from France, then practiced throughout
Europeworked on CJ, feudal law, local rules
 style of teaching similar to Glossaturs










scholarship changed: no marginal notations-instead long monographs on their
take of law
 comparative studies of how different law addressed certain issues.
Bartolus: famous one: wrote next study of CJ which became text used most
commentators were advisors for times when conflicts arose, particularly b/t
Roman and canon law
councilors: were asked for legal opinions-where Glossaturs gave point of
view, councilors gave own view of how they viewed issue
 much more like ancient Roman jurists
 not binding, but influential
 done within universities: courts might send them problems to deal withnot directly governmental
problems of system: what if conflict b/t Roman, feudal, statute, customary
law?various localities had rules
 ex. Pisa: rule-apply city statute 1st, then customs, then general Roman
rule-Roman law used as subsidiary source
 Roman law infiltrated into rest of legal system: statutes of cities, drawn
up by lawyers, used parts of Roman law
 even if not explicit, Roman terminology used
 later interpretation in light of Roman law
 interpret statutes and customs to diverge as little as possible from
Roman law
made for growth of ius commune: common law of Europe
commentators pushed local law in direction of Roman law
also created idea of criminal responsibility: took criminal law to level
Romans never saw
also developed public international law: whose law applies when, where?
commentators grasped this
reintroduced rational judicial procedure: witnesses, testimony, decision
(no trial by ordeal, etc…)
Archaic Law:
 compurgation: no rational inquiry into facts of case-bring in friends to swear oath
you were in right-most oaths wins
 mostly oral legal tradition, communitarian edge to system
 most severe punishment-outlawry-anyone can legally kill you
 ex. criminal law: goal of trial was not to establish guilt/innocence (not until later
Middle Ages)key was remedying harm
 grew out of system of private blood feuds/revenge
 key: repairing breach in society, providing remedy to dispute so both parties
could be brought into tribe againtrial by battle, 1 dies, 1 comes back to trial
 acceptance of Christianity by Germanic Kings: big legal changes, kings ruled
with sense of divine purpose in world-world would be better in future than past
 church community transcends tribal, kingship boundaries
 with coming of Christianity, changes


1. older kings were religious figures-descended from GodsChurch changed
this-kings now subject to divine will
2. new emphasis on written law
3. political values of state should be more humane-poor should be looked after
(primarily by church), same laws for rich and poor
 Germanic law saw people in diff. categories (male, female, warrior, nonwarrior, etc…)church insisted on fundamental human equality
things that didn’t change with coming of Church
1. no natural law restrictions on Germanic Kings: kingly freedom of action was
intact
2. trials by compurgation preserved into Middle Ages-1100’s-magical elements
continued in force
3. Folklaw, kinship as bond of legal importance: continued to be primary legal
link until mid-1100’s
4. No clear separation b/t Church and state: attitude, even church, was “We owe
allegiance to secular princes.”
Key Historical Trends
1. Church had far more power to tax than state (10% /yr. in tithes)
 collected $, built churches, monasteries, bought land, helped poor
 encouraged people to give extra to church at death
 became very wealthy-could easily compete with secular princes
 princes thought clerics should be thankful to princes for protection
 since church ultimately under control of princes at this time,
 princes appointed families, allies to bishoprics, etc…
 kings cherished investiture power as royal patronage
 bad consequences for morals of churchmonasteries, bishoprics, parishes
held by people enjoying wealth of church, not pursuing religious goals
 lead to system w/ secular princes saying “we control church property
distribution, etc…bishop of Rome one among many bishops, but only one
emperor
2. as a result, get countermovement from inside churchCluniac Reforms (Cluny
monastery-international)truce of God, peace of God came from this
a. sin of simony: buying and selling of church offices
b. sin of nicolaism: sin of married priestsstill OK to marry at this time
 Cluniac Reformers argued Church had to be purged of these vices, sins
 initially, Holy Roman Emperors supported movement
 sins continued, church criticism became more vehement until revolution
occurred
 Election of Hildebrand as PopeGregory VII-1073fierce partisan of
reformsquickly announced manifesto
a. Roman Church founded by God alone (not emperor)
b. Bishop of Rome is one universal, only one who can depose bishops
c. Pope only one who princes answer too, can depose emperor for sins
d. Pope can release vassals from feudal bonds.
 Emperor Henry IV: sent back letterremoving pope as illegitimat
 attacks points of manifesto as well
Gregory VII excommunicates Henry IVback and forth between the 2
Resolution: Pope relied on fact princes and barons of Germany were
distrustful of emperor’s absolute powers, favored popewere released from
feudal bondscivil waremperor gave in, kissed pope’s feet
3. Chief Claims of Investiture Controversy
a. Pope wanted to assert supremacy with in the church: all bishops answered
to pope, were to be appointed (invested) by pope Thus name of
controversy.
b. Supremacy of pope within church to determine canon law and religious
rulings, power to create, destroy, depose bishops, canonize saints, etc…
c. Pope’s claims about relationship to secular powerspope-only pope above
many secular princesonly pope has power to depose kings
 kings hold power through God, through Church
 if king breaks divine law, he is deposed
4. End of Papal Revolution: Sir Thomas Beckett, Henry II Plantaginate in UK: 1100’s
 at time conflict began, Norman conquest occurred
 king declared right to change law, control churchWilliam had papal authority
and support to centralize churchresisted efforts by papists (from monasteries)
 over time, papal party gained powerweak king of Stephen
 Henry II came to power, pushed papists back
 appointed friend Beckett chancellor, archbishop of Cantebury to serve
king’s interest, not pope’s
 immediate tensions and conflicts b/t 2 menBeckett resigned as
chancellor
 1164-Constitution of Clarendon declared by Henry16 customs became
law of land
a. if question of if land is church’s, crown decides
b. if ecclesiastical courts condemns, decides, etc… can appeal to crown’s
courts
c. If cleric accused of felonytried in church court, but sent to crown for
sentence (church penalties less severe)
 central issue: Is Church an institution inside state, or is state institution inside
church?question of legal jurisdiction
 both sides had powerful argumentsneither claimed exclusive power to weild
both state and spiritual sword
1. king: I am seeking powers acknowleged by church as secular-I have
armies needed to defend, run legal order, defend faithw/out me, church
dies
2. Church: Kings, as christians, subject to law of church; we have interdict,
anathema, excommunication, will use themsee how subjects like it
 1160’s: enormous tensions b/t Henry and BeckettHenry did well
 fierce clashes over execution of some priests
 Becket accused of corruption-pope tries to work out dealBecket accepts
large parts of new Constitutionstill fighting



1170: Henry makes offhand comment-knights murder Becket at
altaroutrage against Henry IIhad to do penance, renounce constitution
 basic conclusions: king not sole power, doesn’t have power to say what
scope of own jurisdiction is-subordinate to church(not Roman idea)-kings
limited in sphere of powerend of papal revolution
5. Legal Consequences of Papal Revolution:
a. Idea of church as self-conscious, distinct, universal group throughout
Europe, superior to secular powers
 whereas before Revolution, clergy retired from world into monasteries
 new sense-duty of some clergy to help reform secular work
b. Idea of law as central to revolution, both as justifying revolt and as
something to build on
 massive # of petitions to Romedevelopment of bureacracylead to
development of canon courts
 also developed complex theories about lawmaking
 canon lawyers introduced idea of positive law (earlier systems:
law=custom of ancestors)
 pope had discretion to issue new law as a rule for entire church
 resultgushing forth of papal decrees-Decretals
 gave rise to professional canon law systemneed trained legal
scholars, etc… to set up system (legal apparatus of modern
state)
 thus, 1st modern state was Medieval Church-had ability to
punish, raise armies, etc…
c. Idea secular authorities subordinate to natural law (connect with a.):
church is legal institution above and beyond secular statesstates are within
churchplural jurisdiction
 Orthodox Russia: czar also head of church-political theology-czar rules
by divine right-no right to rebel-religious subordinate to czar
 After Revolution, big question political thinkers of church faced was idea of
corporation
 Church as immortal legal person with rights and duties-corporation
 church used Roman law to set standard: some types of decisions that
members alone or head along makes, as well as shared decisions; head of
corporation subordinate to rule of law
 thus pope’s power not absolute: if pope becomes heretic, sins, etc… pope
can be removed
 Thus central idea of rule of law comes out of Investiture Controversy
 Corporat law/tax law foundation laid.
 Roman Maxim: corporation can only act if all members actwhy no
corporations in Rome (also how corporation chooses new head, etc…)
 Church: not good for us to follow: work out theory for college of cardinals to
elect pope
 used Roman idea of mandate: principle can appoint agent to act on their
behalfcouncil of cardinals is like person exercising mandate-members

allocate power to cardinals, they elect popegives unanimity corporate
law requires
beginning of representative governmentextended concept to secular
system-parliaments as representative of nationseeds of democracy in
13th century
6. Non-Legal Consequences of Investiture Controversy: once papacy won, nonlegal developments occurred
 rapid growth and spread of universities, scholasticism, use of Latin as learned
language
 rise of systematic study of Roman law
 rise of Bologna as leading university
a. Popes asserted authority over church throughout Europevery thorough
 ~1100: gave rise to canonical procedurecivil procedure
 popes and local bishops asserted new legal authority: before now,
consistery court of bishop adjudicated cases-maybe convened senate of
local church officials
 as legal matters increased, became burdensome for bishops to preside
 bishop appt. officials to preside over courtbishop sometimes did
 same thing in Rome: pope as ultimate legal arbiter: necessary for
Vatican to build up bureacracy to hear official business
 popes overwhelmed-appointed auditors general: listened to cases on
pope’s behalffunctioned as consistery court did for bishops
 system even more complicateddiff. courts to deal with diff. legal
issues
b. Problems with system: litigants, to get justice, had to pack up, travel, bring
other parties and witnesses to Rome
 response: papal judge delegates: local clergy given letter of instruction
to try case in pope’s name as per papal instructions
 advantages: vatican still retained judicial control, litigants only needed to
go to nearest bishop, local clergy had more work, but within diocese, you
act in name of pope and prestige goes up
 body of procedural rules developed for judge delegates
 since spoke for pope, vatican kept tabsdetailed written record
required (didn’t happen in ancient Rome)Key Development was
emphasis on written record, procedure
 rules were elaborate
 JD appointed, receives complaint from pope, presents it to def.,
requests response w/in 10 days-extended to 30if no showexcommunicated, default judgment
 most showedreceived formal complainthad X days to respond
 substantively: case no good, etc…
 procedurally: should be, or has been in other court
 if court doesn’t dismiss, D gives contrary assertions, then, very loose
trial


witnesses summoned by court, under pain of excommunication
notaries submit questions to judge: those are what judge should
ask
 private meeting with witnesses and notary to create record-ask
notaries and own questions
 heavy burden of proof for P-“as clear as noonday sun”-2
eyewitnesses req’d, written evidence OK, but less probative than
oral
 full written record exposed to partiesparties point to questions
for judge to note, signif, impeach, etc…
 judge takes it all into account, makes decision
 decision includes finding of fact, but not law
c. Criminal Procedure: 1100’s: most crim. pro. was trial by battle or
ordealaim not to establish guilt or innocence, but to heal societal breach,
remove harm
 canon law lawyers didn’t take to this, instead emphasized guilt, innocence,
punishment
 by 1215, clergy forbidden to take part in trial by ordeal: system dependent
on clergy participation, so it collapsed
 canon law, until 1200, had accusatory procedure: necessary, for crime to
be tried at all, for accusor to come to judge, accuse D of X crime
 problems: accusor responsible for trial costs, if D acquitted, accusor
could be liable for false accusation, std. req. of full proof-2 witnesses
 denunciation method: go to criminal first, urge him to confess and repent,
then accuse
d. 1200: new forms of criminal procedure came into play
1) Trial per notorium: judge can take notorious evidence into account-no
accusor needed-everyone knows it occurred
 judge assembles bits of circumstantial evidence to sentence and punish
D’s-low std of proof
 criticisms from jurists: if facts so obvious, why can’t you prove them?
 sufficiently criticized it soon died off
2) Trial per inquisionem: trial by inquisition-procedures handed down as if
they were procedure (God used it to try Sodom and Gommorah-pope
claimed)judge could act ex officio: don’t need accusor, judge only
needs reasonable ground to be suspicious of someone in community
 judge also investigator and prosecutor
 D: no right to notice, counsel, once charge brough, D had right to
appear before judge, hear charge, give case, call witnesses
 debate over std. of proof not settled (clear as noonday sun vs. per
notorium-circ. case enough)
 1220s-1300s-canonical jurists preferred accusatory system for criminal
casesjurists tried to undermine system
3) Canon Legal System: focus on rehab. of crim. rather than retribution,
typical punishment was penance

extremes: confinement to monastery, relaxation to secular arm
(usually executed by state), fines, recompensation
 general remarks:
 oddities of system: why didn’t Henry II call out armies, crush the
pope?people wouldn’t obey at time
 natural law controlling: NL limiting authority of secular rulers and even
pope
 interaction: new powerful idea binding human actors
 institutional framework giving idea power an authority
 church is legal institution over secular states-includes themnew ideanever grew in east
 idea of several overlapping jurisdictions critical to development of
Western legal systemsseparation of powers, checks and balances
 not in Roman lawno sophisticated legal theory like Middle Ages
 popes and kings very driven by practical, political considerations: once
dispute ended, church set about elaborating sophisticated legal
theorynatural law: not only creatures on earth, but even God can’t violate
 Aquinas: violating NL like God being unable to make 6 sided triangle
 divine commands from God don’t create moral order, commands god
issues are issued b/c they are antecedently rightGod can’t make
murder intrinsically rightvery strong NL theory
 overarching view: philosophical ideas developed by scholastics,
promulgated by church, w/ complete mastery over educational, legal system
(bureacracy key)
 one bureacracy: over entire continent, based ultimately in Rome
 one institution: forcing moral rules on secular world
 one administration: administering entire continent w/out modern
communications
Central questions applicable at each stage of European Legal History:
2 groups:
a. questions about ideas: What are principle intellectual forces at work in civil
law, how did they emerge? (human rights, no slavery, codification, decreased
power of secular rulers?); What is source of these new ideas?
b. questions about institutions: What was role of courts, how were they
structured, power? Could they make new law? Lay people or pros? How
were they regarded? Pros or by jury?; How are laws made? Courts, Kings,
leg., councils? Limits on power? NL, etc…
 distinctions b/t adjudication and legislation not always precise for Mid.
Ages
 education and scholarship-how trained? Freedom to chase new ideas?
Role of schools in development of new law?
 How did modern system of European law develop? Stages of
development, how distinguished from other systems.
Ius Commune: spread of Roman Law throughout Europe from 1200-1500;
ItalyFr.Germ. last
 commentators interested in reconciliation of Roman law with canon, feudal,
merchantile, etc… lawgave rise to ius commune: briefly regarded as common
subsidiary law for all of Europe
Factors pushing Europe toward legal uniformity during high middle ages
1. effect of canon law: common religion and bureacracy under pope’s control (admin.
and jud.)
 church in possession of elaborate system of Civ. Pro, Evid., highly educated legal
scholars
 church had large # of church administrators (not religious clergy) with expertise
in canon and Roman lawspread throughout Europe after revolution
 Imposed uniformity in way law was thought of, how it was applied, Roman law
2. authority of Trad. Roman law: on civil law side, Roman law enjoyed tremendous
authority throughout EuropeFr. kings and HR Emperor used to pretend to be heirs
to throne of Rome-empire hadn’t died, just shifted
 theoretical absorption of Corpus Jurisdue to this fiction.
 also, Roman law gave states nice, concrete rules separate from procedures and
insulated from religion, social, economic issues
 readily transplanted into all parts of Medieval Europe.
 Authority of Trad. Roman Law: radically different from Medieval legal scholars (use
reason to establish or even further text’s authority and its right to be followed;
elaborate and explain) and modern scholarly approach (reason supports text, where
from, why believe) to text:Rome and CJ-make text authoritative
3. Influence of Legal Education and Scholarship: as general matter, when statute or
local custom was to be interpreted, jurists looked to communic opinio: common
opinion of legal scholarsinterpret statute to diverge as little as possible from
authoritative rules of digest
 Thus substantive principles were achieved in Middle Ages in addition to Roman law
 Canon Law Dominance:
 primary thinkers were in church, used canon law, also church administrators
(judges) studied Roman law (even in UK)
 roman scholars, academics were only people in possession of sophisticated
methods for resolving legal disputeshad legal scholarship-rules, procedures for
resolving cases
 in countryside, lay judges could be relied onif go to one of these, just like
going to oracleno predictive power
 church or university: get justifications whygreat predictive power
 intellectual authority of Rome, highly developed Church procedures, and
internal factors of legal education and scholarshippushed university system
to be based on Roman law
 Glossaturs: by marginal glosses (notes in text), used them to teach digests to
students

commentators: not just teachers, but legal practitioners-gave legal advice to
church and state, wrote legislationpresented own theories-consistent view of
legal system as a whole
Ius Commune: common law for all of Europe-not a single law binding anywhere in
Europe, but refers to result of blending of Roman law always studied in the universities
with canon law, study of feudal law, local statutes, and customs, and commercialmerchantile law-divided into subsections
 learned law: (Roman and Canon)from universities
 ius proprium: (feudal law, customary law, statutes, local law, etc…)
 lasted for 400 years (1100-1500): finding of digests to full recieval of Roman law
into Germanyabsorption varied geographically
General Remarks
1. Most people who went to university to study law studied Roman and Canon law-got
degrees in bothL.L.M-master of laws-master of learned laws
2. Ius commune: functioned as follows: if dispute arose b/t 2 people,
 if come from same city/kingdom: apply that law
 if both merchants or from diff. areas: merchantile law
 if no other correllation: apply ius commune
 ius commune: used in situation of last resort to resolve disputes b/t 2 where they
share no other laws in common
3. Tremendous tendency to think of learned law (Roman-canon) as law of peace, since it
applied universal legal principles across Europe to deal with any conflicts b/t anyone
in continent
4. Lots of things going on in university affected ius proprium:
 one common language (latin), teachers moved around, same texts used, no local
law classes taught
 common for commentators to take learned law and apply it locally
 later Middle Ages: customs written down by trained legalists in Roman Law-used
Roman Law terminology in writing down customs
Geographic Study
1. Italy-1100-1500: feudal law less deeply entrenched here than anywhere else
 feudal law slid backwards as time went on
 central issue during rise of city states: question of adjudication: 1200’s: growth
of professional judiciary replacing civic magistrates, in part to counter local
corruption, family powerbrought in outsider for 6 mo.-1yr. trained in learned
lawpodesta
 in charge of administering city’s law
 travelling individuals or families did this
 problems: probably due to mistake in Roman Law interpretation, podesta liable
to loser if screws upresulted in very conservative podestas-sought out decisions
of learned law specialists locally educated in law to follow strictlysome cities
required podesta to follow legal opinions of jurists, some even compelled them to
follow ius commune
 Consequences:
 writing of commentators, esp. Bartolus, were extremely influential, as
podestas relied on most influential commentators
 civil law writings on procedure were absorbed into law practice locally, even
into ius proprium
2. Germany: like Italy, no effective legal central authorityafter Investiture
Controversy-local princes held real power
 lacked group of learned jurists
 Roman law trad. weaker here, customary Germanic tribal law was much stronger
 law was pronounced by Schoffen: local lay people with legal prestige, but no
legal training, particularly learned lawno reasoning, written documents
appealed to, no elaborate judicial opinion-just voice of oracle
 only place learned law made impact before 1500 was canon law: taught in
universities, applied in ecclesiastical courts
 local law very primativecanon law gave locals idea of learned law with
elaborate civil procedure
 difference b/t theoretical and practical reception of rules in Roman law
 practical: 1500-rush of Germ. acceptance-nowhere else like this
 theoretical: always valid, as HRE was heir to Roman throne
 in 1500’s sudden practical reception-matter of few yearsius commune floods
in-princes and cities accept it-wanted to modernize law
 before reception, Germany stood apart from ius commune nations
3. France: in contrast to Italy, ius commune much more evident in procedural law than
substantive lawgrew out of canon law copied from pope’s law
 substantive law had less impact that in Italy b/c:
a. In North, Germanic customary law deeply imbedded-no Roman lawin It.,
Roman law and local custom were the same.
b. Fr. kings thought it was important to look independent of Holy Roman
empire, imperial jurists, even though only slight impact of Roman law in
Germ. at time
 Substantive law: geographical distinction
a. Fr. Counties South of Loire River: land of written law:
 strong continuing Roman influence with some Germanic
 mostly followed Roman legal substantive rules
 looked 1st to local customs, then Roman law if needed
 1220’s Fr. king and legists declared they were not bound by Roman law,
even in south
 early 1300’s: King Philip the Fair: law guided by customary law, of
which Roman law is part, but law empowered by crowncrown is source
of law
b. Fr. Counties North of Loire River: land of customary law:
 Roman law not ever valid as subsidiary law-tribal law dominated-Roman
law not legally binding as in South
 when legists wrote up northern customs, used Roman ideassome incorp.
 Procedural Law: king of Fr., most able on continent to establish central state,
used Romano-canonical procedures to establish authority
 employed clerics and legal scholars from Bologna to offer rational, highly
ordered set of rules to deal with disputes
 much better system than irrational tribal system
 based on written record, procedure, guarantees, appealproduce decision
with rational justification
 abolished trial by battle
 Mid-1200’s-Louis IV: said he would make courts available to appeal from
decisions by feudal overlords-in theory, overlord fined for false judgments
 courts gradually gained power to modify decisionschanged law as they
thought it should beright to appeal developed
 Fr. Kings: set up parliaments: mix of royal advisors, supreme court, and
legislature
 gradually feudal system of appeals and royal lower courts to king appeals
merged, leaving crown as supreme judicial figure in kingdom
 by 1500’s, learned lawyers had replaced lay-feudal lawyers everywhere in Fr.,
but feudal remnants remained until Revolution
4. Modern Period: Europe after 1500: social, political, geographic, legal explosion
 political:
 Lutheran Reformation: Luther excommunicated in 1520-gave rise to
religious wars for 30 years until Peace of Augsburg
 whatever religion prince was, so was principality’s-no tolerance, just
compromisebroke out again in 30 years war in 17th century
 Calvinism: Switzland, Netherlands, Fr., etc… later England
 Counterreformation: re-thinking of church, increased power of bishops and
inquisitionscrackdown on heretics
 complicated dynastic and religious wars: no longer united Europe
answering to emperor and Rome
 rise of centralized national monarchies: England, France, Spain
 rise in power of middle class, decrease in power of feudal nobility
 idea of European unity replaced by balance of power
 what alliances are key to protecting own interests?
 Spanish and Portuguese expeditions to N.A., followed by Fr. and UKnew
sources of revenue, new reasons for war
 1500’s decline in power and influence of ItalyFr. invades,
 Fr. and Spain new dominant powers in Europe-Fr. plays key legal role
Renaissance Trends
1. Change in legal scholarship due to Italian Renaissance, esp. in Florence
 classical scholasticism: 3 central charateristics
a. completely ahistorical: commentators looked at digests w/out inquiring into
historical context of when text was written-treated almost as holy writ.
b. spent great deal of energy reconciling conflicted parts, rules of digest via
scholastic rules, saying why authority of corpus juris wasn’t undermined
c. spend great deal of energy systematizing corpus juris
 Humanists: didn’t contrast b/t religious and secular world viewit was about
studying humanities, literaturemovement for revival of classical Greek/Roman
texts-literary types trying to bring back classics-Ovid, Cicero, etc..
 when Humanists trained eyes at law, were different than scholastics
a. humanists concerned with seeing Roman law in historical contextcontemptuous of Middle Ages separating them from ancient world
b. very concerned with revival of classical elegant latin, recovering original
texts of digest
c. rather than reconciling or systematizing, humanists more likely to
acknowledge conflicts as real and blame them on bad scribes in Middle
Ages, corruption of text or explained conflicts by fact Corpus Juris is
historical document arising from ancient Rome, reflecting a certain society
which changed over time-so one rule appropriate to one time, one to
another
 can’t force into harmony, just see they came from diff. Times
2. New emphasis on vulgar languages as opposed to latinuse of Fr., It., Ger., etc…
 Gave rise to new nationalism not seen in universities
 Effects of Humanist movement more strongly felt in France-Why?
 Humanists tended to view texts in relation to local laws, customary,
etc…Roman law not entrenched in France
 Therefor it gave Fr. Scholars ready-made explanation for why Fr. Law was diff.
Than It. Or Germ. Law
 Increased nationalism reflected by use of local language in universities
 Fr. Legal scholars wanted Fr., not Roman system
 It.: Roman Law entrenched as national tradition
 Thus, mos italicus continues to prevail
 Great French Jurists:
a. Alciatus: in civil service but extremely interested in Greek texts (very un-middle
ages)-w/ fall of Byzantium, Gks. Fled to westinc. in Gk. Interest
 He found original texts from Rome, pulled Roman history from inscriptions
on stones
b. Hotman: Huegenot-rejected Roman/Canon law entirely-argued France had
golden age before reception where French law ruled by Fr. Customs, and Roman
law had no authority in Fr.refused external law from Rome
 Since 1500’s tendency to think of Rome laws as foreign to local legal
systemsHotman was 1st person you see this with
3. Legal education: radical changes in late 1400’s-1500’s due to:
a. effects of humanist scholarship:
b. invention of printing press: didn’t need monk to copy texts out-now non-wealthy
could own copies of the law
1) thus legal education could shift emphasis from memorizing texts to emphasis
on creative thought, elegant argumentation (neat, clear simply as needed to
solve case-“rational clarity”)

new texbooks organized along lines of institutes-in logical form, not
jumble of digestsbears later on school of natural law, codifiers of 19th
century
2) increased use of Byzantine sources to fill gaps
3) increased use of interpolation
Lead to split in France of Fr. Legal system and Roman Law
a. Hotman view: Roman law is not, never was relevant to Fr. Law-should dump
it and go back to Frankish law (minority)
b. Majority: law is relevant to time, place, circumstanceproperty rules of
Rome no good today BUTcan use Roman law to develop new, practical Fr.
Legal system
 Source of principles, not source of rulesLEAD INTO NL theories of
16th, 17th centuryrational criticism of legal system
4. Legal Effects of the Protestant Reformation
 In Medieval system, church and state were complementary powers sharing
ultimate authority
 Reformers: protestants faced pressing new legal problems
a. What was to take the place of the ecclesiatical courts?
b. Where did authority, if not with pope, now lie?Bishops? Congregations?
New hierarchy?
c. What was relationship b/t church and secular powers?
 Essentially
a. Lutheran Germany: lay powers stepped into shoes of pope-seized
ecclesiastical, legal, administrative powers of church
b. Calvinist Switzerland: more separation of church and state, w/ state
subordinate to church-church should use state to create Godly society, church
had control over much of secular affairs
 Very little impact on substance of canon law-didn’t abandon it, just changed
jurisdictions (i.e. law of marriage didn’t change, etc…not secularized until 18th
century)
 As result of Reformation, secular authorities gained much more power to regulate
in areas traditionally part of canon lawroad to secularization began
Reception in Germany: German Law-Late 1400’s-1600’s:
 before practical reception in 1500, Germany looked like this:
 key characteristic: political fragmentation-legal, judicial, legislative, executiveemperor elected officethus emperors concentrated on local dynastic line, not
imperial
 Reichstag: had no power to enforce own lawsimperial court had granted most
of its jurisdiction to local princesthus total local control
 Greater of princes from 1300’s, electors, were given dispensations in exchange
for votes for emperor-(ex. Right of appeal beyond princes
extinguishedgradually spread to all princes)
 Each principality had own local law
 Landrecht: custom
 Lehnrecht: feudal law

Local judges based decisions on memory and common senselegal
fragmentation furthered by Reformationcustoms not pulled together as in
France
 Lack of central authority paved way for reception of Roman law
So why was Roman law received in first place to such a thorough degree?
1. Desire for written law: already was high in Middle Ages
 Sachesenspiegel: Mirror of the Saxons-1200’s-Saxon law
 also books stating local custom, legal opinions handed down from mother
cities to daughter towns
 Fr.: N?S-pro/anti-Roman splitprinciple influence of Roman law is on
procedure, not substance
 It: rules of Roman law were local customIt. Stays in Middle Ages legally
longer than others
 Germ: jumble all types of laws, organizations
 In It., Fr., Roman law trickles in over course of centuries via works of scholars,
administrators, legislators
 Germ.: Roman law courses in around 1500 in a few decades in a flood
 For past 500 years, Roman law effect on Germ. Has been intense
 In late 1400’s there was a theoretical reception: HRE was continuing in
footsteps of Roman emperors
a. used in fight with pope, but no effect on law
b. Laws received into Germany not classical Roman law, but law of
commentators, as determined by legal scholars-translatio imperii
 In contrast, influence of canon law much greater
 German universities in 1300-1500 devoted lots of energy to training people in
canon law
 Late 1400’s: princes began to adopt canon law procedures to try to consolidate
own powe
 1495: Emperor Maximillian I establishes Reichskammergericht: judicial bodycourt
 old imperial court ineffective, had no power
 new court had much more power to enforce lawsunder pressure of princes
 ½ of members were nobles, ½ people educated in law (50)-jurists were
elevated in status w/ nobility
 by mid 1500’s, legal education mandatory for all members
 subdivided into Senate
 canonical law procedureselaborate written procedures
 substantive law1st: common law of empire-since not much, 2nd:
righteous practice, statutes, etc… of principalities in court
 but most judges trained in Roman lawdidn’t want to dig up local
customs, so under guise of applying local law, brought in Roman law, also
used it to interpret local laws
 still very little power and very expensiveemperor had given most of
power away, Protestants detested it
 but gave procedure, legal model to princes and legal scholars

princes set up mirrored rival courts: which could enforce its decisionsto staff
courts as well as imperial, had to staff with learned in law peopleTHUS
ROMAN LAW INCORPORATED LOCALLY AS IN NATIONAL COURT
 scholars interested in written records of Reichskammergerichtrecords usually
secret, but still writtenWhy?
 Imperial Commission would review decisions of court, remove judges
 Judges also liable for corruption, etc… 1520s-30s
 Records kept to protect selves
 Also judges published books of own caseslater on, lawyers did same
 mid 17th cent: judges were required to issue written opinion for each case
 Thus Reichskammergericht is a central model for Germany-1st key to reception
2nd key: Aktenversendung early 1500’s: Carolina (1532): Imperial statute
promulgated by Kaiser, forcing judges, when there is a question or controversy about
the law, to consult those learned in the law.
 At first: judges in difficult cases sent complex legal questions to university
facultiesasked for answer as per statute
 Over time: judges didn’t just send procedural questions about Romanocanonical law, but all documentation about facts of case (most judges still
laypersons)THUS faculties had whole case sent to them
 Process called Aktenversundung: “sending of act”-lasted several 100
years
 Consequences:
a. litigants certain of receiving sophisticated, impartial justice (geog.
Distance, etc… scholars didn’t know litigants)
b. non-princely courts were able to compete with princely and imperial
courts re: knowledge of Roman law
c. since courts were geographically different, law professors not interested in
local customary lawTHUS applied substantive Roman lawmost
widely used
d. legal academics directly involved in deciding casesraised prestige of
law faculties (not in UK-no connection to Cts.low prestige and power)
e. Usus odernus pandectarum: modern use of pandects (digests):
application of common body of legal doctrine
Italy: still applying old Medieval Corpus Juris-Roman law as written reason-taken on
inherited authority of textmost conservative country
 Roman law and Customary law barely diverged
 Roman law was local law, not imported as in France
France: ius gallicus: humanist history, philosophy, linguistics of text, with
concentration on local Fr. Custom (custom of Franks)
 Northgermanic law
 Also grew up necessity to choose b/t various rulesrational approach-had to
give reasons why Roman or local customs applied, why one better
 Prepared ground for law of reason-17th century
Germany: ironic-Fr.survival of Frankish-germanic law, Germany-germanic law
displaced by usus modernus pendectarumdue to emperor and inherent resonableness
Other Sources of Legal Unity in Germany
1. Statute: Carolina: 1st imperial statute applied across empirenot heavily
enforced, but example of criminal code for empire signaled start of idea of
codification
2. Various city-states, princes, decided it would be good time to codify local
customs, while absorbing Roman law and canonical procedureas in italyinscribers trained with Roman lawtook on Roman form, filled in gaps w/
Roman law
THEREFORE: by 1600, Germany had basically received Roman law as law of
empirenow more of a Roman country than Francelegally more unified, but
still politically disunited
 Principle Features on German Scene by 1600
a. no central political authority
b. Roman law received
c. Seeds planted for codification and natural law movement, also national
legal unification
France: The Legal System 1500-1600
 Increasing demand for systemization of customary law (codification)
 Centralized, consolidated power of Fr. Monarchy
 South: Roman law was subsidiary source of law-whenever customary law ran
outsome uniformity
 North: total reliance on customary, varying wildly, locally
 No official collections stating substantive or procedural law
 Parties had to prove custom to be appliedreq’d 2 inquests into law of 10 jurors
each-not abolished until mid-1600’s
 Remedies for this: varied by region
a. idea of statut personnel: status determined by place of birth or domicile, not by
locality you find yourself intherefore individuals know what law applies as you
travel
b. compile customs in official register in each district: esp. N. Fr.-started in
1400’s-continued for centuries
 hard to tell what customs were
 Estates General: told king to compile royal edicts, customs of Fr. By
regionstarted in North in 1498
 Process: by region
a. local assembly created draft of law
b. non-academic bureacrats working for king (not big Romanists), attended
final meetings
c. royal bureacrats promulgated resulting law in name of the king
 king didn’t know what law would be, but king was able to put stamp on law as
source of all law in France

in process, brought some order to N. France, but didn’t increase amt. Of
Roman lawpromulgators, drafters not trained in Roman, but Fr. Customary
law
 process went on for all of 1500’s
 didn’t produce uniform legal system, but 60 general areas of customs and
hundreds of local jurisdictionsstill 350 at revolution
 Consequences:
a. Consolidated split b/t north and south of Fr: South-Roman law still
major influence, North-old Frankish laws written down, set in stone
b. Criminal law, Civil Procedure: of importance (key) to king-insisted on
Romano-canonical rules throughout kingdom
c. Now that customs written down, had material for academics to
analyze, gloss, etc…became basics for Code Civile
d. When Fr. Civil Code/Germ. Civil Code differ, its b/c Fr. Code has
custom and Germ. Code has roman rules
 French Legal Scholarship of 15-1600’s: in Germany, scholars were in universities,
but also enforcing law, while in Fr., legal scholars were practicing lawyers who knew
something of Roman law, but didn’t follow it to a tee
 Since no central court, central scholars, Fr. Didn’t develop code until Napoleon
 Fr. Appeal not to authority of text (CJ says to), but must support decisions by
reason
 Molinaeus (1500-1566): great humanist legal scholar-solely concerned with law
of N. Fr.upheld authority of Fr. Crown to find general Fr. Customary law to use
instead of Roman law as subsidiary source of law
 Dkjflal Wanted short, simple code of private law for all Fr. (not until
Napoleon)
 Domat: later, just barely-looked at Roman law, said it could be better
organizedtried to take Roman rules, rearrange them in logical order
 Foreshadowed law of reason, seeds of civil code
Differences (b/t fr. And gr.)
a. Germsubst. Roman law; Fr.subst. Germ. Custom
b. Scholars differentacademics vs. practicing lawyers
c. No central pol. Auth. In Germ., but in Fr. Monarchs presided over strong,
centralized monarchy due to Royal courts and legislation that could actually
be enforced
 2 components:
1) courts: Parlements: 15-1600’s-were institutions that were mix of
high royal court and legislature
 served, esp. P of Paris, as bastions of royal power and check on
royal power
 well worked out model of civil procedure-elaborate system of factfinding and appeal via Romano-canonical law
 could be enforced (unlike German High Court)
 parlement spoke in name of king-where justice and equity
demanded it, departed from law, announced new rules

also a check: Fr. Still saw king as bound by lawking is protector
of law, etc… (Medieval idea of king)
a) for law to be valid, had to be registered w/ parlement
b) parlement had right of remonstration: acted as cousellor to
king, could get king to reconsider “bad” decisions
c) around 1500-judges of parlement made irremovable, even by
kingbecame nobless de robe: as nobles, independent source
of political authority in kingdon
d) parlements felt free to exercise rule-making power throughout
most parts of law (except private law) throughout 1500-1600s.
e) Theory of divine right of kings-kings rule by divine authority
beginning to take holdresulting conflict b/t it and old view of
king (several indep. Sources of power) vs. 1 source
(godking) not settled by revolution, which rendered it moot.
 Parlement bound to secrecyno reportsb/c P was counsel to
king, also religious tensions
 Result: no published reports of judicial deliberations in Fr.
Until 1750 (Germany had open system of disclosure already)
2) Kings also used Royal Legislation (besides parlement) to
consolidate power
 Middle Ages: merely declaring customs already existing
 mid-1500’s: legislation could create new law (new theory of royal
sovereignty
 end of 1500’sseeds set for diff. Direction than Germ.
a) loud calls in Fr. For codification (none in Gr.)
b) demand to harmonize N,S Fr. Law
c) demand to get rid of feudal residue (same in Gr.)
d) demand for greater openness in judicial decisions
17th Century-1600’s: The Beginnings of Natural Law
a. Main political Activites:
1) Germany: 1618-1648-30 Years War- devistates Germany, legally
toobreakdown of civil order (Hobbes-chaos)
2) Fr. and UK: consolidation of power of monarchiesdivine right of kings
 UK civil war: republic, Glorious Revolutionlimited monarchy
3) Increased trade, etc…leads to increase in int. law to deal with colonization,
law on high seas, etc…
4) Growth of natural law
b. Legal Debate: in 17th century, esp. Fr. and Ger., debate raged b/t
1) tradition (custom, authority) vs. natural law (law of reason)  not just
trad.-there is higher justification for legal system-reason!
 natural law leads to:
 demands for codification
 demands for systemization of law
 spurred on by scientific progress and theorists of Enlightenment
2) Separate debate b/t limited sovereignty (medieval kings) and absolutism
(will of the king)
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continental Europe: close connection b/t abstract legal theory and law
UK: practically minded lawyers developed law-largely ignored political
theory
new European philosphers raised new ideas about contract, etc…
why was continental Europe more open to these? (and were they absorbed
into the civil law?)
a) Relative conciseness and simplicity of Justinian’s Institutes
 easy for philosophers w/out legal training to read, have basic
understanding of law, apply philosophies
 common law: big messhard to teach, hard to apply philosophy
(ex. Brits applied civil law to Indians-much simpler)
b) development of law in UK in hands of practically-minded judges and
solicitors: while in Europe, academics were, and they applied most
fashionable philosophical ideas to law repeatedly
tradition:
natural law: law of reason,
social contract
limited sovereignty:
constraints on power of
ruler
Coke-(3)
Locke (4)
absolutism: one source of
power in kingdom-the king
Divine Right of Kings (1)
Jean Bodin (Fr.) (2)
Thomas Hobbes (Leviath.)
A. Absolutism: one source of power in kingdom-the king-2 variations
1. Divine Right of Kings: Charles I of UK, Filmer-patriarcha (proponents)-based
on idea of traditional law and religioun
 kingdom considered as large patriarchy on model of the family
 in Bible, God gave Adam authorityrule of primogeniture: eldest son
passed down to Charles Iacutally put together geneology for Charles I
 based largely on religious tradition, authority
2. Jean Bodin (Fr.), Hobbes (Leviathan): more deep, influential
 Bodin: law based on rational foundations (specifically, social contract), not
traditions
 Hobbes: in state of nature, before king and commonwealth, people lived a
human life that was solitary, nasty, brutish, and short
 humans relatively equal-property unstable-enemy could kill at anytimeperpetual state of warbad situation, but there’s a way out
 capacity to reason!better off to do deal, establish social contract,
establish order
 peopleagree to put selves under sovereign
 sovereignmust be one person, indivisibletotal submission by
people up to capital punishment (b/c contract about preserving life)
 key is law of reason, natural law
B. Limited Government: each king, pope, etc.. has legitimate role to play for society’s
benefit-if they step beyond thisright of resistance
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3. Coke: UK academic (Germans also big on this)much harder to advance
limited monarchy in Fr.-very strong king
4. Locke: Law of Nature theorists: also advocated limited government
 it is true legal order needs to be founded on social contract
 state of nature not so pessimisticindividuals, less states, will cooperate, have
property, respect each other (law of reason rules), like living in South Sea
islands
 people will want govt. to protect property, defend against criminals,
mauraders, will come together and create govt., but will severely limit it.
 won’t allow sovereign to take away liberties they enjoy
 power of state limited to nationa defense, education, protection of private
property
Natural Law really begins to take off-separates self from Medieval links to cannon
law and ius communegrew out of medieval natural law
 Rule is not law unless supported by higher law (law of reason), that attaches
law to moralitygoes back to Greeks
 Important distincitions
1) natural law can be authoritarian (conservative): medieval catholic theoryAquinas-“keep to social place”don’t rise up, stay with role of society as
assigned VS.
2) natural rights (revolutionary): new idea-roots of US, Fr. Rev.-individuals
have rights which can be asserted against the state
 other key concepts:
1) divine law: revealed biblical law (esp. part of NL in middle ages)
2) law of nature: encompasses great # of subordinate ideas
a) Rome: law governing men as animal species
b) Middle Ages: certain moral rules binding even on god
c) 17th century: some connection b/t law and morality
d) newer idea: Law of Reason
Law of Reason: species of N.L., differs from Medieval NL in several ways
1) takes source of NL to be reason (rationality)
2) in 17th century, becomes independent of older, religious foundationsdoesn’t
become secular or anti-religious though, just logically independent
 ultimately allows law of reason to serve as foundation of secular legal order
 2 types of NL lawyers can come into sharp conflict
In 17th century, # of factors pushed toward adoption of law of reason: radical
change in contract, marriage, property, family structure, state structure
1) Things not responsible for rise of law of reason
a) religious reasons: rose in Catholic Spain, Lutheran Germany, etc…
b) government structure: no link to absolutism, democracy, etc…
c) no economic drive: no favor to capitalism over other systems
d) scientific revolution: origins go back to Medieval Spain and canon law
2) Thing that were responsible:
a) ongoing systemization of law in Germany and France: needed way to
choose which rulespeople looked to underlying reasons for rules.

b) Justinian’s CJ had declined in authority as legal reasoning: local law was
respectable-to enforce Roman law, had to use reason, not “Rome did it!”
c) Abstract philosophical sources: metaphysics, theology, etc…
 in late scholasticism-conflict b/t those who thought law and morality were
based on divine command (became absolutists) and those who thought
monarchy was independent even of will of Godindependent
justification
d) European Colonization of America and Religious Disintegration of
European Unity:
 Reformation, rise of nationalistic monarchieslines not drawn on religion
in dynastic wars
 Push to develop public international law, deal with nationsdidn’t rely on
old rule-need to rethink fundamentals of law-ground in new, non religious
reasons
Key Figures:
1. 16th century Spanish Catholic Scholastics: wrote about foundation of law re:
atrocities toward indiansroles as priests: save human souls-can’t do so if kill
em all!
 as result of missionary complaints: obligation of Spanish toward Indians
 if in possession of land peacefully, Indians should be treated as ownersseparate from Christianity
 right to life, personal liberty, property applies to all humans, simply as
humans, not Christians
 right of natives not to be converted by force
 also contract law, wills, etc..
 while thinkers were catholic thinkers putting forward theological theories,
as consequence of work, developed theory of NL that could be logically
applied to any religious group
 idea of God giving rules of NL doesn’t have to be central to same structure
with reason at center.
2. Hugo Grotius: Dutch-trained in law in Fr., went back to Netherlands w/
absolutist power, tried to be lynched, smuggled out to Fr.
 1625-wrote “On the Law of War and Peace”-during 30 years war-looked at 30
years war, merchantile needs of Holland
 came up with public international law binding on nations regardless of
legal past or religions
 this NL was based on human reasonGod at heart of system, but God is
logically dispensible in system-athiest could accept system
 might as well be secular natural lawreligion, from here on, began to
recede in control of legal systems
 truths of NL are self-evident truths gained by use of unclouded human
reason
 draws on mass of theories from Rome on
 human beings are rational animals endowed by reason, by natural
desire to live in society (peaceful, well-ordered)
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 true even if no GodGod doesn’t change this
 so how do you get particular laws?
 can’t deduce from general premises
 NL commands some things generally (ex. Keep contracts.)
 other rules permitted by NL-adopted by sovereign
 also wrote a lot about private law:
 contracts, due to theory of treaties, property rights (is occupation
necessary to have land, sea ownership?)
 in contrast to Rome, do need occupation to own landTHUS no one
owns sea-Law of The Sea
 contracts: must be based on law of reason-THUS minors, lunatics, not
bound by K’sequality of parties key-fraud or duress invalidates K
 K is rational agreement b/t 2 equal people and requires meeting of the
mindsmistake invalidates K.
 totally willing to reorganize private law into flexible, rational, abstract
system
 ROME: no well developed K-theory-emphasized formalistic aspects
of K, not reason or will
 ultimately pushed forward codification-parts of his theories end up in Ger. and
Fr. systems
 1st secular NL theorist
NL lawyers in Germany: couple of ways Grotius’s ideas are picked up
 late 17th century: NL adopted by enlightenment princes, absolutists
 highly education NL lawyers in chancelloriessaw law as barbaric, outdated
 introduced new codes of modern natural law based on egalitarianism, justice,
etc… reason
 absolutist princes introduced idea that old class distinctions were outdated-wanted
feudal system outbring in system based on law of reason
 Frederick the Great: Prussiagoes both ways
 peasant stood up to palace expansion-rule of law wind, Fred. impressed
 trial of judges-judges said not guilty, so Fred. puts them all in jail
 egalitarianism vs. absolutism
 since despots introduced NL-ambivalent attitudes toward their new law for
next 100 years.
 Natural law appeared positioned to have large impact on Germany
1) Roman law was controversial
2) NL offered device to choose b/t Roman and customary law
In American colonies, Fr.: ideas of natural rights/law bound up with democratic
ideas, limited princes, all people were equal
In Germany: absolutist princes promulgated natural law
 Opponents of princes held onto medieval concept of limited king
 Frederick the Great: enlightenment prince
 NL came in by edicts of princesdiff. Natural law than Fr. Or US
 1661-chair established at University of Heidelburg for Pufendorf, particularly to
comment on, and expand Grotius’ work
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key ideas of enlightenment came togetherfocus on scientific, rationalism,
presenting laws of nature in rational framework, from which you deduce way to
particular laws and theories
Romans distained abstractionJustinian copies them down in no
orderHumanists/NL present whole body of law in systematic fashion-distill out
fundamental theories in general, deduce entire system from premises
Enormous impact on codification
Pufendorf:
 Humanity lives in natural state of peace
 Human beings discover natural law by use of reason
 Where Hobbes saw content of law as what sovereign demands, Pufendorf said its
not truededuce natural law
 Deduction similar to Grotius-whole of private law reduced to contractual
obligation (from social contract of Middle Ages) (includes property relations)
 Contrast w/ Rome: whole of private law reduced to property
 Pufendorf also takes number of rules out of Digests, builds into systemoffers
blended system of newer natural law and old Roman law
 Takes us up to eve of 18th century-era of codification
 Now have professors throughout continent teaching natural law
 Lots of calls for codification of law to systematic, elegant system of law
 Codification: has become fundamental of civil law as comparison to common law
General Intellectual Background in Enlightenment
 Enlightenment broader, newer than law of reasonPlato on
1. Respect for natural science: (new learning) attitude of skepticism sometimes
verging on atheism, toward traditional religioun
2. Key focus on religious tolerance: state should be secular, free of religious
dogma, separation of church and state
 General trend: state no longer connected to church-secular theory of natural
law
3. Strain of rationalism: rejection of medieval legal order, feudalism, old
fashioned criminal law resting only on authority, church, custom, et…
 If law not justified by reasoninvalid
 Thinkers of age assumed laws of social world must be simpleVoltaire, Bentham,
etc… once you got rid of superstition, preistcraft, raised education, would get utopian
society quite rapidlythe less priests and nobles, the more perfect
 Many early codes whether princely or democratic, banned interpretation of
codethey were clear, perfect-just apply to facts
 Politically: emphasis on fundamental human equalitycalls to respect equality,
social contractlimits on ruler
 calls for rigid separation of powers as core element of constitutionesp. judiciary
 on continent, judiciary was tool of ancien regimefocus on not giving them
too much respect
th
 18 century: glorification of secular state-state turned into religious cult of own
(esp. France)

particular example: Reform of criminal law
 General background: end of 17th century-law became central concern of
national govts-they were now clearly in charge, responsible for executing
justice
 Tendency early on was of harsh repressionif commit crime, die or cut it off
 Romans worked out no, and canon law worked out very detailed, handling
of criminal justice system
 Penalties ran from fines, confiscations, etc… to banishment, disfigurement,
deathcould not be punished with torture-only for interrogation
 Capital punishment for murder, theft, blasphemy, att. Suicide!
 UK 1776-166 capital offenses
 Criminal procedure no better: secret accusations, investigators used torture
 Enlightenment reforms: emphasis on reforming prisoners, balance b/t crime
and punishment
 Not deterrence, if do certain amount of harm, deserve same punishment
 Emphasis on rational procedures, forms of punishment
 Can only punish where there’s concrete harm to another person
 Beccaria: Brilliant criminal law theorist actually in Italy-until now lagged
behind
 Scope of criminal law limited to acts harming society
 Bad acts alone not sufficientleave to conscience, church, not state
 Job of ruler is to protect social contract of state-nothing more
 Laws should be simple, clear, provide educational foundations for state,
populaceabsolutely enlightenment-based values
 All persons should be treated in same manner-no diff. In how criminal law
applies to nobles, commoners
 Can only inflict punishment where you are certain crime was committed
 No secret accusations, arbitrary use of discretion by judge
 At interrogation, prosecution can’t use leading questions
 Torture doesn’t give reliable testimonybanned
 Rules make sure witnesses you hear are credible
 Death penalty should be abolished-life imprisonment more of deterrent
 Beccaria enormously admired by Frederick, Catherine the Greats
 Abolished torture, followed other ideas
 Austrians put him in charge of N. Italian law
 Bentham took out utilitarian formation
 Fr. Revolution: adopted many (not all-Death penalty) of suggestions
Codification:
 Difference b/t common and civil law?
 Common-judicial procedure, civil-codes and rules
 Not good distincition:
1. codification occurred only recently-differences were already in evidence back
in Middle Ages
2. some civil law J’s didn’t codify (S. Africa), some common law J’s did (Cal.)
3. Amount of legislation passed by leg. Same in both systems
 Differences traced back to Roman Reception
1. difference in role of judge, academic
a. on continent,
 judges were bureacrats, applying law, not sources of law (since
Roman times)judicial procedure did not make law
 academics: wrote law in Rome, expounded on and taught what law
was in universities, actually decided cases (Germ.)
b. Law on continent treated much more systematically, more rule-based
 Mistrust of judges-want them to apply law mechanically (no
independent judgment)
 In recent years, has changed sign.
 THUS codification plays different role in Civil vs. Common law systems
 Not key if have code or notkey is attitude toward code
 Justinian/Fr. Codes: get rid of old law-compile new law as only lawstart from scratch
 Code becomes statement of law-ultimate authority rests on legitimacy
of legislature
 Cal.-common law: takes common law, cleans it up around edges, writes
it down-judges still fill gaps via common law adjudication
 Don’t pretend Cal. Code solves all legal problems
 Not like Fr., Germ. Late 19th, early 20th century
The French Code: Code Civile
 Need to distinguish b/t codes written before or after Fr. Civil Code (Fr. Revolution)
 Fr. Code written with rationalism, revolutionary approach
 Sweep away irrational law of old order
 New clear code in sunlight of revolution, reason
 Did away with lawyers, judicial discretion
 New code drafting begun during revolution, conceived of as addressed to nation as a
whole-to every citizenuses clear, popular language
German Civil Code of a century later:
 Jurists argued for delay to examine in depth Germ. And Roman law to see if it fit
what they wantedif rush, copy Fr.bad job
 Delay for 100 years-new mood in Europe-code consolidated existing legal
orderprotection of middle class values-property, K law, not the poor, workers
 No attempt to sweep aside existing legal order as in Fr.consolidated and brought to
date existing legal order
 Pedagogic: existing legal styleFr. More emotional, flowery, bad legal drafting
 Audiences: Fr.mass of citizenry-enlighten them to rights and duties
Germ:after watching Fr.need code focused on lawyers, judges,
technical practitioners to produce right answers in concrete casesnot
meant to educate commoners
Pre-Fr. Civil Code Codes:
 Causes pushing people toward codification
1. demand law be simple, easy to enforce uniformly throughout nation-simplicity,
clarity, education
2. strong input from NL tradition: Grotius, Pufendorf, Bentham, etc… law can be
deduced from general principles about human natureleads to strong set of
demands
a. Roman law be reformed or replaced
b. Feudalistic/canonistic irrational elements should be tossed
c. Base law on fundamental human equality
 Doesn’t explain codification aloneboth conditions were in UK-Bentham urged
codification, invented work, but UK didn’t codify-why?
1. Example of Justinians Institutes: fact you have institutes and its offspring,
fact Justinian said law was complete-never died out on continent
2. 15-17th century-various movements to write down, systematize customary law
of Fr. And Germ.
 Combined with NL reasoning, these two reasons gave material to sort
through, create rational law
3. academics on continent, w/ increased legal prestige then UK ones, were in
position to carry out codification
THEREFORE no real movement to codify in UK
 1st modern codes appeared in 18th century:
 Bavaria, Prussia, Austria: NL codes introduced by princely edict
 Bavaria:
 1751-Bavarian Criminal Code: (pre-Beccaria)-step forward in clarity by
writing downtransitional-witchcraft, torture, mutilation still in
 1756-Bavarian Civil Code: didn’t abolish other forms of law-where there’s
no statute, look to civil code-general subsidiary law source
 effort to use reason to deal with disputed points
 in German, not Latin
Great Code: Frederick the Great-Prussia
 Prep-work-the ALR:
 started by Fred’s dad-abolished institution of Achtenfesdung
 ordered university to deal with disputes, drew up new code
 his son carried on work, produced 1st NL code in Europe
 significant feature: “This code abolishes all previous legislation” It is primary
source of lawall previous jurisprudence is irrelevant
 drawn up during Fr. Rev. 1780-1794
 intent was to base law on reason, reduce Prussian law to natural order
 code takes NL as formulation to avoid people being deceived by judges and
lawyers-so simple-no need for professional legal counsel-no need for legal
commenatators, lawyers
 prohibition on interpretation of code by lawyers/judges-if conflict, gap arises,
report back to king and commission-they’ll fix the code-don’t enforce own
opinion
 remnants of feudal law not abolished
 presented in NL fashion with clear overall structure
1) Intro
2) laws relating to you as individual-rights and duties, torts, property, K
3) you in social relationships-marriage, kids, corporations, const. theory, admin.
law, etc…
 landmark document: takes uncompromising view for simple legal code to “set
people free” from lawyers, but suffers from problems
 too detailed in trying to regulate every aspect of subjects lives
 not clear where to stop in writing down rules-absence rules in detail-would have
to allow for interpretation-king didn’t want this (thus even included regulation on
breast-feeding
 too bogged down in detail-never followed again
 lawyers/academics/judges hated code, tried to undermine it
Austrian Codification:
 based ultimately on Roman law with use of NL to fill in gaps
 3 emperors worked on it 1700’s
 17 years after Napoleonic Code-1811 promulgated
 logical organization
 enlightenment code: but no concessions to popular sovereignty or political
democracywe are sovereigns, here’s your law
 although Fr. and US codes enlightenment and dem./pop. rep., no
connection b/t them-could be authoritarian and enlightenment
 still wanted good kingdom, just didn’t believe in dem., but allow for =
treatment of all citizens
French Civil Code-Code Civile: most influential, followed by many nationswhy?
 other codes, incl. German, were already influenced by Fr. Code Civile
 introduced by Napoleon by force into Belgium, Nd., It., part of Germ.some
kept it after he left, others didn’t want to be imposedwrote own laws to
“look like Fr. code”
 also introduced to colonies-Africa, Asia, Middle East, Louisiana, Quebec
 imitated by Spain and Latin America
 German Code: central Europe, Japan, Turkey, source of Chinanowhere
near Fr. code
 demands for codification: pre Napoleonic
1. gathering of Fr. law in 1500-1600’s
2. NL thinking: Grotius/Pufendorf-less influential in Fr. than Germ. or US
3. Ideology of Fr. Rev.*****
 calls for codification for 300 years-1454 (printing press, fall of Byzantium)
 Charles began to write down northern customs
 100 years later-Estates General endorsed codification-too detached-got bogged
down
 later some merchant, oceanic law codified
 2 chief intellectual influences on code from 17th, early 18th century
a. Bourjon: determined ultimate structure of code-3 books
1. persons
2. things (also obligations)
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3. ways of acquiring ownership
b. Argou: end of 17th-way laws actually appeared
 neither had general concepts of K, property, etc… unlike NL lawyers
 didn’t find it in precursors to Fr. Code
c. Pothier: 18th century-wrote detached studies of Roman law-took Digests,
presented rules in new orderrestated trad. law of obligations from customary
law
1790: task of drafting code started in earnest
 short code-presented to assembly w/ following language
 civil legislation should be simple in structure, lofty in origin, great in
simplicity
 characteristic enlightenment ideas-reason, simplicity, etc…+ revolutionary
overtones
 convention replaced assembly, rejected code as too Roman, customary
Terror Begins: Napoleon seizes power, creates Committee of Four of practicing
lawyers-Nap. wanted to be thought of as law giver
 sat over many meetings, intervened repeatedly, esp. divorce
 handed code to Tribunate, they threw it back as imitation of customary/Roman
lawNap. purges Tribunate, code enacted 1804
 Civil Code of French (1804)Napoleonic Code (1807)Code Civil
(1814)Code Napoleon (1852-57)Code Civil (1857-present)
 same reverence as US for constitution-Fr. Const. no one cares
key features from ideology of Fr. Revolution: either directly incorporated into or
by implication part of civil code
 old feudal boundaries replaced with modern departments
 legal distinctions b/t citizens gone
 feudal burdens on land, primogeniture abolished
 civil marriage, divorce introduced
 king abolished
organized along lines of Institutes (not NL like Austrians)
 b/c codification done by practicing lawyers
 turned to 17th century authors, copied them
despite Revolutionary rhetoric, underlying law of K, prop., torts, stayed the same
 no general theory of K, torts, property
 no proper relation b/t individual and society developed
 despite influence of NL on Rev., Code Civil very influenced by Customary
Frankish law and Roman law (wholesale adoption)
 drafters used law of reason to settle conflicts b/t customary and Roman
code expected to comport with Rights of Mann and Citizens
In contrast to Austrian Code
 Fr. code very restricted in scope-doesn’t deal with const. law, commercial
procedure, crim, etc…
 each one received later separate code
 far inferior to civil code

practical advantage: by leaving these things out, limited self to least controversial
part of law-private law of many centuries
 made it possible for Civil Code to survive restoration, etc..
 would have been big changes otherwise
 code could attract loyalty of all-right and left-national accomplishment
 in civil law nations, code is statement of what the law is
France vs. Germany:
 many modern legal differences traced back to early 1800’s/late 1700’s
 converge at 1800, then diverge
 Germ. received Roman law, Fr. retained Roman law but had
customrelatively similar
 Fr.: rationalism, order, write down rules explicitly
 Germ: historical approach-more careful-toward drafting code at end of 19th
century
 THUS Fr. has much more Germanic code
 Fr. code due to Revolution
 Germ. code as reaction against revolution, terror, extremism, etc..
 careful, scholarly, historic study of law of past
 less bias against lawyers, academicsneed them to administer law
 more willingness to write unelegant technical document of Victorian
society rather than Fr.guillotine at front of mind of drafters
 3 chief ideological aims of Revolutionary drafters of civil code:
1. Clean break with past: sweep aside irrational aspects of legal orderfeudalism,
church, king, so code would be sole source of law
 we know nothing about civil law in general-all there is is code
2. Make lawyers and commentators unnecessary: code clear, literarily well writtencode would sit in every home with Bible or Volitaire-could look up any problem
3. To enforce strict separation of powers (not balance of powers): judiciary has to
be subordinate to legislatureno judicial review
 source of fiction of code as coherent, fixed, exclusive source of law without
any gapsno scholars of judges are tempted by gaps
 if code not complete, judges not constrained, judges end up legislating under
guise of interpretation
 Divergence b/t Fr. and Germ. over case law:
 1800: opinions of judges very far down as minor source of law in both nations
then diverge
 Germany: reasoned judicial opinion, in late 18th century, early 19th, introduced
gradually after debate
 France: judicial opinion kept weak by revolution
 limited by fear of judicial law-makingenemy of democracyjudges much
more distrusted than in Germ., where judges slowly became more respectible
 judges feared death in Fr.
 continues to present
 THUS: legal scholars in Fr. much more likely to look at judicial opinions
STILL, both less than common law




Revolution had huge amount to do with Fr. attitude toward judges-judges
upheld abuses of ancient regimeprinciple feature of criminal trial procedure
pre-rev. was secrecy
1790: Constituent Assembly reformed courts:
1. sale and inheritance of judges eliminated
2. popular election
3. term limits
4. Criminal cases: jury of accusation (grand jury) and jury of trial
5. appellate courts eliminated as centers of political resistance
6. courts forbidden to make regulationsif don’t decide based on law, turn over to
legislature, not self-we legislate, not you!
7. Judges forbidden to interfere with actions of executive branch
8. Courts required to disclose findings of fact, motives dispositive for judge
2 theories of interpretation:
1. forward looking interpretation: might want to give judges great power to shape
and change law (US/UK), encourage judge to make full explanation, explore law
2. backward looking interpretation: avoid secrecy and check judicial power
Cassation: highest appellate court in Fr. private law
 court told it could quash rulings of lower courts only if they violated procedural
rules
 idea was that court shouldn’t exercise independent judgment-only enforce
procedural rulesNapoleon wanted to avoid substantive appellate powers
 Other checks on Cassation powers
1. Court had to send special deputation before leg. detailing cases of year
and why they decided how they did
 very burdensomedropped 1800
 created cautiousness about jud. innovation
2. Ct. given no authority to impose rulings on lower courts
 appeal from lower Ct. to Ct. of cassation
 sent back down to diff. lower court up to 3 times, then leg.
 not much to force lower court to do as CC said
 system still survives: initial decree of CC not binding on LC
 if case comes 2nd time from 2nd LC and CC strikes it down again, then CC
opinion becomes binding on lower court
 no stare decisis
 change is much slower in coming
 judges wrote opinions in way to justify them to suspicious legislature and
publicvery terse form developed
 list of facts
 list of relevant statutes held together with ; , whereas
 little or no analysis of law, public policy, etc…
 tried to avoid ruling on any matter beyond present case
 judges scared of revolutionaries-showing they have no
discretioncarrying out leg. will
 something of flavor carried up to today

decisions handed down by monolithic court (no dissents)-only get clerk’s and
presiding judge’s names
 violation of oath of office to reveal debates, dissenting reasons
 confers automatic unanimity on all decisions
 makes it difficult to predict where court is going in future
THUS case law not key source of Fr. lawin theory, however, court could
interpret codes as they saw fit.
Impact of Legal Scholarship After Code Promulgated: post-code-1794-legal
education ceased to existrevolutionaries viewed legal scholars as tools of ancien
regime
 enlightenment approach: with simple code, no need for lawyers
 1795: law schools abolished by statuteonce civil code promulgated, Nap., while
hostile to scholarship, created 10 law schools in 1804heavily controlled
 professors hand-picked for political subservience, lack of original thoughtformally
forbidden to interpret code, pursue original ideas
 imperial inspectors: appointed to check on professors-if they had, the were demoted,
fired or prosecuted
 after Nap. deposed, got more independent approach toward Fr. jurists, but main job
not to interpret code in new way, but to explain what code means
 act of legislature, not courts, created law-leg. was focus of jurists, not courts
 attention of 19th century scholars was expounding law itself-courts in low repute,
subordinate to leg.
 civil code was expression of leg. will-heart of Fr. nation
 Statist Code: code is intrinsically consistent and is sole source of law
 scholars felt duty to protect code from misinterpretation by courts or other
academics
 system-building, producing unified accounts of what civil code requires,
defending yours against others
 only late 19th century did system break down and academics began to look at
cases as law sources and study objectsbias still toward code
European Trends at this Point:
1. Industrial Revolution: need for regulation of large industries, increased labor
unions, joint stock companies (modern business corporations as central legal
institutions), increased demand for regulation of employment-child labor,
etc…reaction to social problems due to mass industrialization
2. Rise of nationalism: unification in Italy, then Germany, emergence of nation as a
cultural, linguistic concept (began w/ Fr. Rev.), kings began to speak national
languages, emphasis on unifying laws of jurisdiction, including national legal
institutions
3. Spread of Ideal of Liberal Democracy:
a. Liberal Idea: Continental: free trade, private property (middle class), UK-US:
indiv. pol. rightscould be either way on free market, etc…
b. rise of entrepeneurial class: brought into contact w/ hereditary nobles
 also in conflict with mass democracy-Marx, etc…

extension of franchise: UK-1840 all property holders, 1870-secret ballot,
1918 full male suffrage, continent-Fr, Switz, Germ-universal male secret
ballot-1870’s, 1907-Finland and Norway-female sufferage
Italian Codification: heavily influence by Fr.
 Beccaria’s influence: some states had partial crim. law codifications
 as Nap. took Italy, introduced step by step Code Civilprovided for pol. unity,
uniform system of law
 after defeat, olds states reasserted selves, kept parts of codes
 until 1861-most states achieved codified restatements of law based on Fr. Code
modelled on some Fr. law, some old law (not divorce, ecclesiastical offenses)
 after unificationVictor Emmanuel II estab. commission to create codes for ItalyCrim, Crim.. Pro., Civil, Civ. Pro., etc…codes influence by some Italian law, also
Fr. and historical school in Germany
German Codification: codification in 19th century
 process very diff. from Francehistory embraced, not thrown out-Germ. historical
school-following tradition of Italian humanists and mos gallicus (old Fr. style
interpretation of Roman law)





what’s being taught in U’s is destructive NL work
codes and schools of NL associated with enlightenment princes
 paternalism like this became untenable w/ new democratic movements after Fr.
Rev.
major political changes: Napoleonic invasionsstrong nationalistic response to
glorification of Fr. nation in response to monarchies trying to invade Franceschitzo
reaction-Nap. conquers, imports civil codesome states kept it, others opposed it.
Kant: radical criticisms of NL, any foundation for legal order based on any external
force to morality
 represents end of NL theorizing
1. Universalist Legal theory: one ‘right’ form of just govt right at all times, all
places-to extent govt falls short, it is unjust and should be replaced by another
2. Republicanism: Kant was fan of Fr. Rev.
a. no aristocracy: no hereditary aristocrats-conflicts with fund. of human nature
b. individual rights: autonomy of indiv., even against majority opinion (not
dem.)
c. personal liberties:
Herder: student of Kant’semotional, literary-at forefront of Romantic movement
1. Nationalist, particularist: doesn’t make sense to talk about legal theory in
abstract, but by each nation with own tradition, intellectual center of gravity, ideas
of right and wrongKant places straightjacket on legal development-law has to
grow out of national soul
2. Personal and Group Liberties: not authoritarian, but emphasizes group more
than personal liberties



 medievalism, romanticism, irrationalism, culture, nation, religion, etc…
 not govt. structure, but arts, culture, etc… of nationbenevolent nationalism
General Trends/intellectual movements:
 more sympathetic eye on middle ages than during enlightenment
 crucial year for German legal scholarship-1814
 famous dispute b/t Thibaut and Savigny
Thibaut: prof. in Roman law at Heidelberg-published pamphlet calling for national
civil code for Germany like Fr. oneGerm. law is a messunequal treatment, chaos,
locals don’t know law; would also make U’s national
 choice b/t Roman (chaotic, ill ordered; not suited to modern world; law of foreign
culture at decline’ wicked provisions-slavery, etc…) and Canon law (joke-no
good now)both unattractive models for modern state
 THUS let’s write modern civil code like Fr.’s
Savigny: responds with 60 page workgreatest legal scholar ever
 Thibaut right about problems of Ger. law-too many jurisdictions, etc…
 BUT codification not the right response
1) In contrast to what NL lawyers have been telling us, law is not abstract system
independent of time, place, circumstancesdraws on Herbertlaw is organic
grown coming out of laws, traditions, beliefs of people
 proper analogy of laws is like a language-develops in same way
 begin with various customs, speech conventions, etc.. only much later that
professional Grammerians reduce language to formal abstract ground
 after national literature in place, people decide how and what
communications work for them
 same with law-begins with customs of national groups-only after in place,
people know how it applies, etc… can jurists come along and supply nation
with code
 law not static-evolves w/ society-can’t be separated
 hopeless to think you can impose on people from above-has to come from
below, in consciousness of nation
 can’t dissect law to study it-can’t divide into componets-treat as organic,
living beings
 enlightement: abstract formal principles VS. romantic: organic, arises from
life of people
 Volkgeist: spirit/mind of the people as ultimate source of law
 powerful idea: sources
a. Montesque: presented idea law dependent on surrounding society
b. Burke: law is organic
c. Gibbon: law among ancient Romans
d. Gustav Hugo: way in which Roman law emerged
at time of princes, Roman law was from Principate authoritarian 
enlightenment princes-support them
 19th century: scholarship, via Gibbons influence, shifts to jurists operating
independent of emperorsdon’t owe anything to emperor’s
2)
3)
4)
5)
6)
authoritylaw is expression of spirit of people-goes with this concept of
Roman law well
2 aspects to law:
a. cultural aspect: law as exists in mind and practice of community
b. juristic aspect: law as expounded by legal system
 interaction b/t 2 aspects gives rise to tensions Savigny talks abouturns to
codification in particular
Codification: problems with code
a. want code to be complete: new cases will always crop up-impossible to
write complete codeeven if defer new issues to leg. or discreation
b. what consequences follow from what rules? if we try to write code before
understand what follows from what, several things can go wrong
i)
setting in writing-blocks future legal development
ii)
danger of if present legal orders wrongend up w/ botched job where
law is more complicated than needed, block off innovation possibility
 end up with muddled Medieval style law
 Napoleonic Code: OK for Fr.’s legal spirit, but in same way can’t impose
from above, can’t take from diff. culture
Thibaut’s criticism of Roman Law: safe for him to do as no longer being
taught at U’s-NL is
 easy for Savigny to say only study Germ. law, not Fr. or Roman, but he
doesn’t
 extraordinarily, he embraces Roman law as reflecting spirit of Roman peopleorganic development in ancient Rome
 jurists came up with legal concepts that came up almost as living beings
 almost a precise legal language as mathematics, allowing Roman’s to
dispose w/ formal rules, definitions
 despite saying not to view law as abstract-says its possible for organic growth
to lead you to system that is stable, simple, precise, system of law like Rome’s
 Rome did it without codification
 as long as have balance b/t spirit of people and scientific precision of jurists,
don’t need codemight even be harmful
 when Rome declinedbalance lost-that’s when they codified, reduced to
formal rules
What to do about German law in modern times? flatly denies Roman law is
foreign to Germany-possible for organic law to grow up one place-if soil
elsewhere is fertile, it can receive organic systemthat’s what happened in
Middle Agescan’t remove Roman law without destroying German law
 Romans centralized, Germans scattered over N. Europe
 R had centuries of time to adopt sophisticated, well-thought out law
 Germans didn’t have thisobviously invaders would adopt sophisticated
system
WE are now in state where we can think about own law:
 Savigny-while in some ways more advanced than Rome, in many ways (art,
etc..) we are not


study of modern German law must rest on study of classical Roman law
lead to remarkable revival of study of Roman law in U’sbecame core of
legal academic interest
 lead to rapid growth in historical legal study: even Medieval
Roman/Germanic laws
 stopped work on code for 100 years
 result: when codification occurred, it relied on full century of strong private
law scholarship
 subsidiary consequence: increased prestige for legal academics
3 Key Debates:
1. Debate b/t Romanists and Germanists: both grew out of Savigny’s work
a. R: juristic aspect of lawspent most of time focused on classical R. law w/ some
medieval
b. G: cultural aspect of lawbuild private law on this basis (Gierke); focus on
medieval law
B/T them, created basis for Germ. Code
2. Pandectistsconceptual jurisprudentialists: emphasized idea that proper bearer
of spirit of people is jurist-at some point, specialist becomes bearer of legal change
 Puchta: elaborated abstract system of juristic concepts-not very historical
 use logic alone to work out legal consequences of rulesdistilled out of
historical law
 like discovering legal alphabet-find them, specify how they behave, all else is
issue of formal logic
3. Free Law Movement: reaction against 2.-end of 19th century
 various criticisms
a. too abstract, difficult to work with
b. R and Pandectists work on classical R.L.law actually absorbed was ius
commune of middle ages
c. abstract conceptual jurisprudence ignores reality of social life-no
connection of concepts to culture-start of legal sociology
d. ignores role of judge, importance of interpretation, acts as though law acts
as mechanical system to be applied
e. pretense law is apolitical-fallacy-no way to insulate law from pol, econ.,
social forces
 all movements take basis from Savigny
Kantian influence on Savigny: idea of Rechtsstaat: state under the rule of law
 liberal interpretation of Kantnot totally accuratelaw divided into 2 spheres
1. public law: principle need to promote 2. private law: people treated as free,
rule of law is particular kind of
equal, autonomous individuals
separation of powers-leg. and
-principle of fault in tort law: only liable if
exec.must be separateexec. should be do something wrong-no strict liability
professional, independent, well-trained -K-contratual negociations are b/t free
bureacracy
indiv. corporations vs. poor guydoesn’t
-leg. can pass laws for society as whole
matter-Ct. doesn’t look further
-bureacratic administersthus leg. just
-property law: absolute dominion over itanother citizen-leg. must live under laws it society has no claims over it-no
passes
stewardship
-procedural garuntees: indiv. rights
(political) state limited in power
-motivation: purpose of state is to protect
private indiv.-free market, etc…
-state as referee: fear of big govt.
-proper function of state severely limited
 criticized by Germanistsindiv. rights come from Romanstoo middle class-anti
labor, working class, poor, farmers
 deeply political
 Germanists: individualism comes from Romans-Middle Ages (guilds, etc..) was
more communitarian
 private property: absolute dominion also from Romans
 Medieval-property held in stewardship for community
K- no total freedom of K-own business for good of wider communityprofits not
bottom line, community good is
 also attacked by Marxists, socialistslaw can’t be based on free market principles
 signif. justification for state intervention into economy
 individuals not fundamental basis of law, corporations, groups are
 even if motivation to limit power of state is benevolent, best garuntee of indiv.
freedom is for indiv. to belong to groups that represent their interests, of which state
is largest group
Drafting of German Code:
 unification under Bismark-1871each state still had own system of private law
 Code Civil, ius commune, local customs, or mix
 quickly realized nation needed uniform code
 1871-Common Criminal Code promulgated
 1877-central court set up
 took 30 years to write civil code
 Windscheid: (Romanists-followed Savigny and Pachta)after 13 years of debate, 1st
draft published-commission of academics and practitioners-made code more practical
in orientationnon-academics ended up having little impact
 1st draft heavily criticised: Savigny’s old arguments against all codes gone,
concentrate on:
1. Code was too influence by Roman law models no longer appropriate
2. too abstract and remote from social realitytoo many abstract ideas from which
rules would be deduced
3. Gierke’s criticism: too biased in favor of capitalist entrepeneur-no protection to
economically weak
nd
 2 commission appointed 1890-expaned to economists, landowners, other special
interests (little effect)
 successful in incorporating suggestions it had received since 1st draftpublished
1895, into force Jan.1, 1900basically still in effect
 Features:
1. Organization: determined by Pandectists (Roman law-Pacta)tighter
organization though
2. Substantive Rules: mostly came from Roman, w/ some customary law where
appropriateintroduced new reforms to polish up law toomuch more technical
and precise than Fr. code, addressed to lawyers, lawmakers, etc… abandon
accessability to commoner
3. Opinions/Judiciary:
 Fr.: effect of codification was to suborn judges to leg.-exclusive reliance of
judges on code
 Germ: increase in prestige of judiciary in 19th cent.-expected to produce
written opinions by beginning of 19th.
 opinions: longer, more discursive, weighing pros and cons of decision
 but still not like common law-no dissents-just court and chief judge
 but judiciary had more power, influence in shaping law than Fr.
 debate not if should be written down, but if opinions would be
publishedeventually, yes
 judges wrote down in style of academics: more intellectual interaction b/t
scholarship and adjudication
 19th century Germ. jud. less obsessed about question of judicial legislation
 Fr. favored leg. from bench
 Germ. tried to give non-binding statement of law-not stare decisis of
common law, don’t follow precedentcompromise b/t extremes of Fr.
and UK-US
 judges began to refer to own previous decisions-no ideological upheaval
4. Effective Way to reduce judge’s power of interpretation, adjudication
 German BGB: Civil Code: written in way to constrain judges
 counter-reaction: Marxists, free lawyers criticisms of code-code pretending to
be value free, formalistic, but had adopted hidden value judgments into code
Fr. Civil Code
Germ. Civil Code
 product of revolution-overturn old, evil  prod. of years of deliberation
order
 consolidation of power of newly
enfranchised middle class
 proceeded a priori-to figure out
blueprint for society based on general
 based more firmly on historical study
understanding of human nature
of whole past (to Rome)
 law (old) still necessary-Gr. law get in
 more sympathetic to precedent in
(more than Germ.)
judiciary
 judges subordinate to leg.
 FR, GR. Codes:
 sharp separation of powers: distrust idea of judicial lawmaking
 tried to unite complete, coherent unambiguous code with no gapsGr.
code showed greater awareness of this.
 used code to unify laws of nation, produce legally monolithic states
 both codes show strong influence of NL theorizing-enlightenment ideas of
law and state


both systems used code to enshrine idea of non-feudal liberal egalitarian
body of private law
in middle ages-power to groups-guilds, towns, etc…., not lazze faireall
gone (esp. Fr. code)
Now at 1900
Model of Code

BGB comes in in 1900, runs relatively unproblematically up until 1st WWmodel
comes under pressure
1. inflation: housing prices became absurd b/c of inflation (K’s become
meaningless)
 Courts and leg. intervene to change K’s and prop. law
 K’s can change if dramatic econ. change
 end of lazze faire
2. Nazi Period: radical assault on legal tradition of BGB
 Nazi’s wanted to remove Roman law, have german law
 commission created, but never got anywhere-still break with Roman tradition


break with Germ. law too: Gierke wanted to still study medieval Roman
lawGeirke’s criticism was that individuality of ancient Roman law gives
state too much power over indiv.decentralize power into groups
Nazi’s didn’t like this eithernot much left
 some affinity for free lawnot really
 basically, cut selves off from entire intellectual basis for BGB, whatever
Hitler wanted, he gotno indiv. rights, rule of law, etc…

Post wardidn’t go back to BGB
 incorporated much of Gierke into Con. Law
 social welfare state, right of labor unions and pol. parties
 enforceable bill of rights, const. courtenforceable against state
Modern Civil Law System: no overarching civil law systemmost fall on continuum
b/t Fr. and Gr. or total mix
 Fr. little effect on Germ. law
 Germ.: pandectist law (savigny, etc..) little effect on Fr.
 neverthelesstypical civil law system: doesn’t describe any existing system
 3 central actors:
1. legislators
2. judges
3. jurists
1. Legislators: representatives of people-express general will of what ought to happen
legally in statetypically enacts series of codes
a. Civil code-tort, K, prop. law
b. commercial code
c. criminal code
d. criminal code and civil procedure
 critical: legislature is supreme, unfettered in exercise of authorityrelative to
other players-leg. makes decisions about how law relates to other economic and
social concerns
 judges subordinate to their will
 roots in 17th century idea of absolute sovereignty of kingstransferred to
absolute sov. of people-absolute undivided power vested there
 state positivism: law is whatever state says it is
 recent clash b/t this and NL theory-certain human rights inviolable-leave aside
for now
2. Judges:
a. in contrast to common law, where they are heroes responsible for making private
law, in civil law they are at bottom
 subordinate to leg., discretion narrowed-nothing like common law judges
wield.
b. Judicial training:
1) common law-law schools, practice, increase reputation, get appointed to
bench later in career-some become household names
2) civil law: students graduate, choose to be practicing atty or go into
administration, or judiciary (kind of admin) where you become well-trained
opinion-hander downer-examination, judge schoolthen are judge
->gradually rise up through ability, senority, pay by civil service pay scale
rare to be laterally appointed to judiciary
c. Interpretation of Statutes: (job of judges)
 Civil: civil code supreme: judges not meant to legislate under guise of
interpreting code
 appellate courts: Fred. the Great-royal commission appellatedidn’t interpret

Fr. rev.: don’t interpret-refer to tribunal of Cassation-branch of leg.-job to
overturn bad decisions of courtstill unweildly-gradually tribunal changed to
court, began to offer reason why it overturned lower court-lower courts still
not bound
 Gr.: allowed SC by end of 19th to revise decisions of LC
 still general reluctance to let judges legislateenormous literature on
interpretation in civil law nations (like US and judicial review)
d. General Equity Law: most civil law jurisdictions uneasy about giving judges
power of equity decisions
 focus on making law predictable
 some exceptions:
a. leg. can delegate discretionary power to judges in certain circumstance (Ital.
Code-tort damages determined by general equitable principles by judge)
b. leg. devises rules of equity to apply to judgeslet Ct. apply them (i.e. make K
in “good faith”)analogous to USSC basing line of cases on 14th am
 no such thing as contempt of court-judges not trusted to wield that powerbecomes matter for criminal law, not civil law-bias toward monetary damages
rather than prison time
3. Legal Scholars: descendants of Roman jurists-supposed to study code as center of
lawin theory, leg. are most influential players in making law-in reality, no more
than other politicians-no extra focus on private law-gap b/t theory and factfilled in
by jurists
 throughout Middle Ages, achtenfendung, codification, into present day, scholars
have retained role
 govts have tried to limit scholarsJust., Nap., Fred.passed laws banning
interpretationnever esp. successful
 Italy: were, but no longer allow judges to quote or cite scholarly worksnow
bring in ideas via la doctrina-doctrine-scholarly works; jurisprudence-opinions
(opposite in US)
 still getting around such legislation
 Roman jurists separated realm of law from politics, economics, religion, etc…
 still applies, particularly in nations under German Code
 scholars are not to interpret, but to say what law is
 present law in orderly, simple, clear fashion (scholars)
Ways Model falls short
 legislature doesn’t produce complete code, or even make complete statement of what
law issame ambiguity as in common law system exists in civil law
systemexplains large # of works dealing with legal interpretation
 no scholars anywhere speak with one voice-particularly Fr.-build up own system,
defend itconflicting schools of scholarsusually 1 left-code has hidden middle
class values, etc…
 It., Germ., Scand: lots of schools, realist, sociological jursip-US influenceeconomic analysis-legal history-Roman law
 Fr. almost none-positivist style of expounding on text due to historical causes
already discussed (both trends not always true)
 civil law scholars much closer to text of law than US law professors
 judges free to disregard own previous decisions, higher court decisions, etc..
greater freedom than common law judges-don’t need to justify
 in practice, tend to refer to previous decisions as evidence of what law understood
to be, also lower courts don’t want to be overruled, even in most extreme Fr.
 thus despite general theory of lack of stare decisis, even civil law judges act like
common law courts
Civil law has developed as it has due to theoretical as well as accidental factors:
1. In Roman law, judge-iudex was layman not formally trained in law, under strict
limitations in ability to enforce decisions: parties choose to complythus judge
relatively unimportantUS juror
 accidental: Republic could have gone w/ system of professional judges
2. high prestige of jurists in Rome: also accidentalfrom senior ranks of nobilityavenue of political advancement
3. relative insulation of Roman law from moral, political, social religious
considerations: ideological-underlying Roman world view-created formalized
system-played as game-no consideration of effect on wider societylead to 19th
century jurists
4. Availability authoritative written text (CJ) in Middle Ages: came to jurists w/
glory and weight of ancient Rome: what if destroyed?
5. CJ decides cases on basis of law text, not previous decisions: Justinian could have
left it out!
6. High prestige of glossaturs, commentators in Middle Ages w/ Roman procedure
and canon lawyers w/ canonical procedure: could present this to princes to
increase power in way no one else could
7. Holy Roman Empire: accidental imperial courts were centrally weak-inability to
enforce judgments, general political fragmentation behind reception of Roman Law
8. 16th Century: accidental fact of Achtenfendung: sent decisions to
academicsraised their prestige
9. Combo of 17th century theory of sovereignty and 18th cent. theory of sep. of
powers: come together in doctrine of leg. supremacy: popular sovereignty come
together with will of electorate in legislature; basis of courts not to legislate, but to
carry out will of leg.stare decisis by courts can’t be made up
10. Napoleon’s personal distrust of lawyers, courts, scholars: will to impose complete
imperial supremacy
11. Codification movement comes to head w/ Code Civil: enhances status of written
law vs. judge-made law
12. Influence of Savigny’s 1814 pamphlet: delayed Ger. code for 100 years-revival of
strong Roman law study-idea of developers of private law as among juristic class
13. 19th century evolution of Ct. practice of civil law courts handing down
unanimous decisions w/out dissents and little reasoning: judges as bureacrats
handing down opinions completely subordinate to will of leg.
Influence of Legal Classification
 Civil law jurisdictions attach more importance to legal classification
 Rome: don’t mix up solutions with problems not of that type
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 classify, bring certain tools to bear
still present in civil law, reinforced by Pandectists, Fr. legal scholars
 saw job of scholars as presenting law in neat, simple way
 state law neatly in code, don’t mix up stuff from diff. parts
 judges tent to shy away from mixed solutions (unlike Common law)
most pervasive distinction: public vs. private law
 classical RomansJustinianGlossaturs/commenators/Ius Commune-18th
century codes-Ger. BGB (late 19th)
 private sphere: free, equal auton. indiv. should be left alone to make own
decisions-state protects indiv. rights-body of law applying here sharply distinct
from public law applied to state (Crim., Const. law)-state as party
 although generally in civil law nations, distinction insisted on, sharp distinction
has been breaking down, esp. Germ. Const. law in 20th cent.
 more willingness for leg. to intervene in labor, contracts, restrict rights of
ownership
 Rechtsstaat-rights state
 Sozialstaat: social state: social benefits garunteed by constitutionEP/DP=welfare, health, etc.. not US
 w/ this, various incursions into employment rights-regulate labor, real estate,
etc..
concrete details: look similar to US or such variability in Europe that no reason to
look at them
Present Day Codes: what they contain, historical reference, basic structure, how courts
have applied, etc…
 France: introduced codes as result of revolutionpart radical, part conservativemiddle class lead revolution
 complete secularization of marriage
 primogeniture abolished-equal division among kids
 feudal law abolished code also contained conservative aspects
 trad. legal institutions remained in effect
 divorce allowed, but lots of procedural blocks
 some freedom in allowing family head to dispose of property at death-no free
total testatorship
 drafters faced with choice:
1. total self-determination: NO
2. patriarchally arranged family units-YES
 man under 25, woman under 21 can’t marry without parent’s permission
 once over 25, only 3 respectful requests required
 once over 30, only 1
 equality of spouses in first draft-by 3rd draft-provision considered contrary to
nature-father had sole right to distribute propertyalso feared domestic life chaos
 divorce: hubby only had to prove adultery, woman had to prove adultery in
home
 b/c of hostility to foreign law-more of it tracible to Germanic than Roman law
Code:
1. Preamble:
2. Book one: on persons: citizenship, acquisition and loss of Fr. nationality, law of
domicile, marriage, divorce, legit. of children, adoption, guardianship, paternal power
3. Book Two: Things and Modification of Property: moveable vs. immoveable,
ownership, use and habitation, servitudes, property law basically
4. Book Three: Acquisition of Property: rules of succession, law of K (capacity to
form, how to construct, penalties, evid. rules, etc…) law of dealings (torts)-5 articlesvery short-rest from courts, matrimonial property law, K’s (special) for sale lease,
etc.., partnership law, loans, agency
 shortcomings:
 organization illogical, a mess: matrimonial property should be with marriage in
book 1, succession with family law in book 1, etc…
 why torts w/ acquiring ownership?17th and 18th cent.: very agricutural-# of
claims low-K law more important, tort law exploded with pop. explosion,
Indust. Rev.
 Roman idea: things owed to you by K or injury are forms of property-not
totally irrational
 literary style of code-pure Fr., no jargon
 changes since drafting: patriarichal structure of family, no free alienability of
property, etc.., free Klaw evolves to keep up with times
 changes by
a. explicit passage of statutes: leg. has amended code: married women can go
into business on own, illeg. kids have rights, free K no longer exists
b. Fr. courts have also played enormous role, particularly where code is
unclear or ambiguous: law of accidents-creation of courts
 sometimes leg. later moves in
 unjust enrichment, abuse of rights (use of property to injury of
community) developed by courts
 Fr. commentators prestige has increased bit by bit, by implicitly
reading code in light of social realities and urging judges to do
samedon’t make law, but interpret in terms of changing society
German Code: Like BGB, not written for commoners, but for burgoiseis-middle class
who were prospering, in favor of freedom of K, property, etc…-19th century economic
liberals
 basic structure: contrast to Fr.-5 books
1. General Part: abstract collection of definitions, terminology, general
principles applied through entire code-Pandectist legal analysis of Roman
law
2. Law of Obligations: personal rights giving one person claim against
anotherlaw of K, tort
3. Law of Things: property lawconcerned with relationship b/t individual
person and his or her rights in regard to some thing, to be asserted against
entire world, whereas rights in book 2 asserted only against one person
(with whom you have K or tort issue)
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neither Roman assimilation of tort into K, property law nor law of
reason reduction of everything, property, K to social contract-K
understanding
 things here are just broken apart-law of prop. to one book. obligation
to another
4. Family Law
5. Law of Succession
diff. from Fr. code: not only # of books, content, but also organization we are
used to.
 ex. bill of sale: US law: sale treated as one unified transaction-2
questions considered same thingwhen purchaser gets delivery of what
he is buying, when aqcuires ownership, are merged.
 Ger. code treats them separately: lose unity of transaction like sale b/c of
separation b/t 2nd and 3rd book
 obligation for sale itself to confer $ or property
 acquiring ownership of property
 acquiring ownership of $
all totally independent-if one invalid, others may still be valid! (Germ.)
2nd example-US strong distinction b/t tort and K lawin Germ., both included
under law of obligationgive person right to claim something against another
individual
prose style: formal, rigorous, less literary than Fr. code
way code applied in 98 years since came into effectdrafted during time of
economic liberalism to safeguard rights of middle class, upper middle
lasslazze faire economics
 little compensation, for instance, for victims of indust. accidents
 how has code kept up with time?
 K law: formally, BGB founded on principle of absolute freedom of K
 no specific protection in original code of tenants against landlords
 no special protection of workers (few not powerful provisions for
safety, sick pay, few provisions protecting you if great discrepency
in power b/t you and another party, if being exploited, if against
good morals)proved inadequate to modify total freedom of K
Code proved difficult to modify
 Leg. has gone outside of law, created additional statutes to fix such
problems-rights of tenants, min. wage, welfare, labor law, etc….leg.
going to core of modern European welfare state
 courts, working without statutory authority, have imposed duties on
employers
 general duty of care:
 general duty of treatment of equality
 has used §242 of code “good faith”-must perform K in “good
faith”used by courts as US has used 14th am. to build up K law
line of cases, particularly during depression after WWI, to limit
K’s to being valid only when background circumstances remain
same-otherwise, K modified.
 §242 also used to build up jurisprudence about improper exercise
of K rights, mistake, etc…
 general name of tendency to use §242 and similar clausesflight
into general clauses
 tort law: basis for liability in tort law was fault in codein area of
accident compensation, particularly industrial, air, train accidents, both
by statute and court action, fault principle heavily weakenedbroad
duty of care to public applied-since insurance widely available, legally
required for companies, courts have little reluctance to move to
essentially scheme of strict liability-co’s act as insurers for public
 intentional/negligent torts: principle of fault still holdseven
extendedinterests of personality, right to have trade or businessnot
conceived of by drafters as being protected
 family law: code very patriarichal, divorce only allowed based on
insanity or culpability in defendant spouse, discrim. against illeg.
childrenpart of code most changed by statute
 post WWI constitution-men and women have equal rights-all
rules not OK with thisvoid
 1957 massive overhaul of codess family law provisions:
separate property remains so in marriage, family property obtained
during marriage equally divided at divorcekept father as head
economic decision-maker-struck down by Const. court
 divorce now allowed when marriage collapses
 Compare 2 codes: Fr: interpretation of Code, body case law based
on ambiguities and gaps in code; Germ: based on general clauses:
“good faith” in K law, etc…, less on gaps.
Civil Procedure: as in US, in civil law countries, have diff. bodies of law dealing with
civil, criminal, admin. procedurecivil is conceptually prior-others derivative
 laws of civil procedure based historically on Roman and Canon law (some medieval
Italian law too)rest is tinkering
 generally, particularly in Fr., great deal of change in this area-adding, simplifying,
etc…; various reforms on their way due to EU-restrictions on legal profession are
crumblingsubject to change in coming years
1. Hierarchy of Courts: jurisdiction much more limited than US courts of first
instance  judges less trusted than in US; also to maintain sharp distinction b/t
public, private law
 separate courts deal with con. law, admin. law, tax law, social security , special
courts-labor, commercial law courtswhat’s left goes into private law courts of
general jurisdiction: tort, K, property, crim, sometimes family
 Germ: ordinary courts-private law, crim; Constitutional Court, Admin. law
courts, social security law courts, labor law courts, tax courts
 Amtsgericht: one judge-not particularly important cases-lowest level
 Landgericht: ordinary court of first instance-3 judges-gen. J.
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Oberlandesgericht: court of appeal-3 judge panel-in effect, get trial from
very beginning-de novo review
 Budesgerichtshof: supreme court for private law matters-K, prop, tort, fam,
crim (not Const. Court with diff. structure)
Fr: Ordinary cts, admin. courts, constitutional council.
 admin. courts: subordinate to Conseil d’Etat: council of state
 ordinary courts: tribunal of 1st instancecour d’appelcour de cassationsupreme court for private law matters
jurisdiction of civil law courts over person:
 service of process: typically in civil law countries, can’t obtain pers. jurisd. over
person by serving personal papersunfair to serve on plane, etc…
 mechanisms to exercise exorbinant jurisdiction: in fr., if P is Fr. citizen,
court has J regardless of who or where D is; in Germ: if D owns any Germ.
property at all, court can exercise in personam J-as high damages as want
 EU statute: limits application to Europeans, kept for non Europeans-res
judicata-if any E court recognizes J, all countries have tocontention b/t
EU and US
trial procedure in court of first instance: 5 stages
1. preliminary stage: papers served to court, court appoints one judge to be
instructing judge, or hearing judge
2. evidence-gathering stage: hearing judge gathers info, creates written record
3. written record submitted to 3 judge panel: they read record, briefs from both
sides, oral arguments of lawyers from both sides, decide-no jury in civil cases
 no jury-3 key consequences:
a. proceedings in civil law country lack concentration: deciding case
doesn’t have to be focused into single event-instead process become series
of isolated meetings b/t judge and attorneys-no such thing as trial in USUK sense of work
 pleadings can be general-leave to process to clarify
 surprise reduced to min.
 lawyers only need to prepare for particular issues being discussed
before judge on particular day-don’t have to master entire case for one
day-warned in advance as to what will be discussed-lots of warning-no
time constraints-no surprise incentive
b. decision renders not immediate decision, but rendered through
written record: evid. gathered by judge listening to witnesses, but
decision made by judges with nothing but written record-hearing judge
usually on panel that hears case-judge obligated to decide case solely on
written recordbreaking down for several years-calls to break
documentary curtain b/t judges and witnesses
c. process much more documentary than in UK-US system: US trial is
series of questions and answers; in civil system, written record gets
emphasisnot solely judge who hears witnesses who decides case-very
often don’t even have verbatim transcript, but summary-hearing judge
summarizes rambling, etc…diminishes degree of orallity, increases
reliance on written record
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
word “trial”: German-“process”-more appropriate to describe civil
judicial process than English word “trial”
 Taking of evidence: judge, not lawyers, ask the questions-parties have
considerable power to frame questions judge asks-judge passive
 lawyers submit articles of proof to judge: describe questions they
want judge to ask witness-shown to opposing counsel-can raise
objections; also can be shown to witness-element of surprise reduced:
no rapid fire CX as in US-foreign concept; questions filtered through
judge with no interest in tripping up witnesses
 parties may not appear as witnesses, nor can relatives or people
with interests in outcome-very little effort spent discrediting
witnesses-opposing counsel might suggest slight change in
wording of how testimony may be recorded-less fuss than US
 discovery procedures: hard to compel opposing parties to give up evidence,
compel witnesses to testify, also don’t testify under oath-no perjury
 evidentiary rules: none-judges expected to be professional enough to avoid
prejudice, etc… also no limitations on timing-as late in proceedings as you
want-useful if new evid. comes up later in proceedings, to counteract it
 some J’s-notably Germ: judge has affirmative duty to discuss legal
aspects of case to help out stupid lawyers: additional way to avoid surprisego back and read XYZ-you are messing up
 ex. P’s lawyer proposes that witness be called. Copy of offer of proof
goes to D’s lawyer, who can raise objection-he’s a relative, bus. partner,
etc… hearing scheduled for a few weeks later-submit briefs and have
argument-judge thinks for a few more weeks, lets witness in. Then date
set for witness to testify. Judge asks questions fed by lawyers at own
discretion, no verbatim record-executive summary dictated to clerkwitness and lawyers for 2 sides look at transcription, agree or argue if it is
accurate summary, summary goes into recordtypically, its that summary
that is what deciding court has to rely on when it decides case
problems with system:
 very time consuming: weeks and weeks-efforts to speed up procedure,
concentrate form more-Germ. esp-Stuutgart Model: if don’t produce evid. in
timely fashion (usually first hearing, but not binding), can’t introduce at
allsubject to const. challenge
side issues:
1. law of evidence: in common law system, b/c of jury, developed rules about
evidence to keep jury from being inflamed; in civil law, have similar devices
 middle ages: to keep judges from being unduly pressure, several rules:
 weighing the evidence: kind of person giving evidence, age, sex, status,
etc.. (lord, man, favored over poor, woman)-3 women to challenge 1 man
 exclusionary rules: relatives, interested parties can’t testify
 decisory oath: parties could place each other under oath re: certain fact
within their knowledgeif A takes oath, fact proven in favor of B, if
refuses, fact proven in favor of AMiddle ages-religion strong-perjury
big sin/crime
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Fr., It., Sp.: decisory oath still in effect-if party doesn’t swear, fact
taken as provedcriminal prosecution for lying
can’t apply for major element of case
supplemental oath: court gives witness opportunity to put statement
under oath to support statement
 some modern J’s: rules excluding certain witnesses still in effect-even if
witnesses do testify (relatives, interested parties) it won’t be under
oathfree evaluation of evidence by judge-he decides what to believe,
disbelieve
 expert witnesses can by called on motion by judge: official list of
expertsparties can call others if they want not on list
 judge’s decision must be based on legal principles, evidence introduced at
trial, can’t go back to chambers and pick novel legal principles not discussed
at trial
2. Right to Appeal: have right to appeal trial court’s decicion-in Ger. and Fr., get
trial de novo on appeal-no jury, so nothing to hinder appellate judge from reading
written record and making as good a decision as trial court. In some nations, have
power to introduce new evidence at appeal
 opinion must thus be based on law and fact-has to address both!
 if don’t like what happens in appellate court:
3. Court of Last Appeal: Cassation, Budesgerichtshof (Fr. and Ger. High
Courts)lower court must certify issue of fundamental importance, or satisfy
minimum amountotherwise would be overwhelmed
 decisions based on matter of law, no longer fact
 no concurrence, dissents-anonymity of individual members of court preserved
varies from country to country, even how public judge’s names are
 Judge will publish law in law review-will give some idea of how judge
interprets law-within area of private law, nothing corresponding to our
knowledge of where our judges stand in US-effort in Civil system is to foster
illusion of certainty. (distinguish from practice of Const. Courts—more like
US Supreme Court)
 2 models:
1. Fr-Cassation Model: court quashes lower court ruling and sends it backlower court free to reaffirm original holding-say SC got it wrong
2. Ger. Model: revision of lower court decision-can overturn or modify LCsend it back for more work or just change it and that’s it-don’t send back
 may have diff. panels of SCs: with different positions on issue-either
have plenary session of all judges, or super panel, to resolve disputes
between SC panels
 used in Fr. to resolve disputes b/t higher and lower court in Fr. great
deal of reluctance to have high court dictate to lower court
Enforcement of Judgment: no power of court to compel person (in personam) to do
as court commands as in common law-mostly property-related-tied to $.
 power to compel production of documents, etc.. much weaker
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contempt proceedings-can’t just hold person in contempt, throw in jail
until comes to senses (in effect, impose crim. penalty for something
you’ve done in civil suit), but judge has to ask for separate criminal
procedure-all of criminal protections apply
 judgment has to be enforced, even in K law, in terms of monetary
damages, can’t compel execution of contract
Damages: no award of punitive damages in civil law systems-can only recover
damages you actually recovered-punishment is matter exclusively for criminal law-if
state is to punish you, you are entitled to additional protections afforded by crim. law
 common law has much more moralistic aspect to it than civil lawmore
strength for force person to act in certain way, jury there to bring moral
sentiment of community to bear on accused.
 Civil law: judges there as civil servant, administering law-easier to ignore
orders-no judicial hammer to toss them into jail, no jury sitting in judgment,
damages limited to what you actually suffered
Legal Fees: usual civil law rule that loser pays all-his and hers-can be financially
devastating in US if other party hired Cravath
 in other nations, have legal insurance to keep cost down-judicare
 also contingent fees not allowed, are unethical, or even illegal
 loser pays all and no contingent fees rules tend to discourage suitsin US, can
work out contingency fee, sue freely-if lose, pay nothing to lawyer or other side.
In civil law, pay your lawyer and other sides lawyers.
 Pros and Cons:
 US: encourages private parties to enforce rights, punish rights violators-easier
for poor plaintiffs to have rights vindicated in court
 bad: ambulance chasing, proliferation of litigationlots of abuse
Criminal Procedure: historical origins in diff. b/t UK accusatorial system and European
inquisitorial system
 Old English accusatorial system: victim-based: power to begin legal action rested
with person who had been harmed or surviving relativesrelated to early tort law-in
early years-no distinction b/t 2
 presiding officer, rep. of crown, heard case and rendered judgment-no power to
investigate, determine what questions should be raised at trial, what evidence
should be introduced-duel b/t victim and person committing the wrong
 Inquisitorial System: going back to Medieval church procedure-power to institute
proceedings vested in state (take from church). Contest b/t accused and state, not
victim
 distinction b/t private crime (where state intervenes in case where one individual
injures another) and public crimes (entire state threatened by action)
 judge not supposed to be impartial-was agent of state. Interrogations done in
secret. often under torture. No jury, right to counsel, ex post facto laws could be
easily applied.
 broadly speaking, in last 2 centuries, Common law moving away from accusatorial
system toward inquisitorial system-public police force, prosecutor, and Civil law

moving away from Inquisitorial system since Beccaria and Fr. Rev.jury trials,
public crim. procedure, right to counsel, etc.. well known already in com. law
imported into civil law crim. pro.
Civil System Criminal Trial:
1. Investigative Phase: under control of public prosecutor and police-much as with
common law, except police have limited power to arrest suspect and carry out
warrantless search and seizures-arrest only under special circumstances-he might
flee or destroy evidence-probable cause not enough-stronger presumption of
innocence than in US
 Germ: show strong reasons suspect committed crime, strong likelihood he
will flee or destroy evidence, and that incarceration proportional to offense
 examining judge investigates thoroughly, questions witnesses, suspect,
prepares written record summarizing relevant evidence
 suspect has right to remain silent, counsel,
 if judge concludes suspect probably committed crime, go to next stage
2. Examining Phase: dossier sent to 3 judge panel-charges have formally been
brought-panel studies written dossier, gives accused chance to present arguments,
submit new evidence; accused has right to inspect dossier-no trial by surprise.
 in US/UK-tend to criticize civil law systems as inquisitorialbut no secret
grand juries, D has right to be heard twice before trial starts, access to dossier
reduces surprise, tricks to D-no bluffs
 so how do you prevent people from fabricating evidence, harassing
witnesses, etc…?
 dossier gives rigorous control-D can’t inspect dossier until D already
given chance to tell his story-if D refuses in 1st phase to tell story-then
agrees in 2nd stage-looks suspicious
 good idea to get story out early on, get into dossier-better strategy
 plea bargaining: happens a lot in US-not most other places in worldin
civil system, people feel its frustrating legislative intent of criminal statutestoo much power in hands of prosecutor, felt to be injustice to victim of crime
too
 even if D pleads guilty, case still must be tried: don’t have executive
proceeding where judge moves on to next case-prosecutor still has to
establish guilt-confession is only evidence-very powerful, but just
evidence-burden on prosecutor to prove guilt never leaves
3. Trial Phase: function very different than common law-not gathering evidence,
trying to surprise other side. Trying to present case to trial judge (jury) and allow
both sides to argue their cases.
 publicity: holding trial in public limits possibility of arbitrary government
action
 jury: none in common law sense-have panel of 1-3 professional judges, panel
of lay judges who sit with professional judges-system of mixed bench: that
panel votes on matters of law and fact-determines guilt of accused and
ultimate sentence

only 3 people have access to full dossier at this point-presiding judge, D’s
attorney, prosecuting attorney; parts can be read into record, but focus is on
testimony in open court, less on written record
 questioning, first of D then witnesses: undertaken by presiding judgeboth sides suggest questions, may even sometimes be allowed to ask
 D entitled to give statement-not under oath, told he has right to remain
silentrarely happens
 once witnesses heard, arguments made, judges and lay assessors retire,
take vote-exact vote not disclosed, but doesn’t have to be unanimous
 as in case of civil procedure, can appeal based on questions of law and
fact-can have de novo review. Prosecutor can also appeal-no double
jeopardy suggestion.
 up through appellate level-thought of as one long set of proceedings
 Self-Incrimination: US only system that encourages D’s to stay silent-anomaly
 in civil law system D can be questioned at any phase, including trial-can’t be
put under oath, can remain silent, but must do so in open court, and it can be taken
into account in deciding casethus D usually says something
 unlike US systemtalking doesn’t allow whole life, criminal record into
court-still some protection-fear of revealing previous criminal convictions
sharply divided from decision to take witness stand
 Civil system if guilty, will inspect dossier, see what you are up against, if
can’t win and think lying won’t work, then confess, give your side, and hope
for mercy
 if innocent: at least not going to trial to be surprised
 thus civil system-if guilty, more likely to be convicted, if innocent, more
likely to be found innnocent
 prohibition against self-incrim. leads to less perverse results thatn in US law,
encourages guilty people to inspect dossiers and admit guilt
 additional safeguards keeping system from being abused:
1. prosecutor and judges have tenure so no undue influence
2. accused represented by counsel throughout proceedings, can inspect dossier,
surprise minimized
3. as important for prosecutors to clear name of D as to find him guiltybound up
with professional independence of prosecutor
4. prosecutor does not have discretion over whether to prosecute. This is rooted in
the idea that govt. officials meant to carry out law and not exercise independence
5. prosecutor not allowed to bargainconviction must also be based on evidence,
not a confession
6. civil and criminal actions can be tried together; many common law tort actions are
classified as criminal in civil law nations; to get “moral damages” i.e. pain and
suffering, future losses, criminal standard of proof is used
 plea bargaining OK in Germany for petty/white collar, but not for violent crimes
 general rule against plea bargaining does not always holdGerman case: a guilty
plea will not avoid trial, but may be shorter and more lenient sentencing
Jurors and Lay judges:



existence of jury sets Anglo Am. system apart.
after Fr. Rev. calls for jury, but recently a trend away from then
German system
 criminal courts of 1st instance: “mixed bench” of professional and lay judges
 lay judges: nominated by local govtgenerally white, middle aged men with
political connections
 serve term of 4 yrs-can’t be removed w/o cause-must maintain secrecy
about their deliberations
 major crimes: 2 pros, 3 lays
 minor crimes: 1pro, 2 lay
 2/3 vote req.d to convictno hung jury for this systme
 senior judge must state reasons of fact and law-unlike US system where
reasons of jury not known
 things move quickly in German system b/c no voir dire, no rules of evidence
(professionals are supposed to be able to make unbiased decisions), no
complicated jury instructions, no elaborate CX, most of evidence already in
dossier
 safeguards in Germ. system:
1. professional judges controlling for lay judges inexperience; professional
judges kept in line by lay judges
2. panel must provide a reasoned, reviewable opinion
3. liberal review at appeals level
Public Law:
1. Constitutional Law
2. Administrative Law
 come out of conception of modern nation state-secular, positive state that is
internally and externally autonomous
 tension b/t importance of protecting indiv. rights and importance of collective
action (will of legislature)
 different conceptions of democracy
1. democracy as will of majority
2. more Madisonian/Kantian view: will of majority limited to protect indiv.
rights
 Continental legal system: movement toward 2.review of legality of
executive, legislative action
 strong opposition against legislating from the bench
 opposition to mixing branches of government
 weakness of judiciary
Administrative Law:
1. French Model: conseil d’etat within admin. branch to review admin. decisionsnot considered part of judiciary, but does raise constitutional questions
 DeGaulle’s Constitution set up to limit power of the Legislature
 executive branch can legislateshould it be unreviewable like leg.?
 Conseil says its not a court, can review decisions of executive even though
judiciary can’t review
2. German system: separate hierarchy of administrative law courts; inquisitorial,
wide ranging power to examine issues of fact and law to determine whether
agency has acted properly
 in both systems, separate category of administrative courts means that
a. formal principle of separation of powers not violated b/c judiciary doesn’t
review admin. agency decisions
b. decisions of administrative law courts can be given broad application without
introducing judicial review or stare decisisadmin. judges can make law like
common law courts do w/out interfering with the operation of normal courts
Constitutional Law:
 idea of flexible constitution-legislative supremacy not subject to checks by
admin. and exec. branches. If leg. violates const., its still valid law and there is
nothing courts can do about it
 most countries have rigid constitutions:
a. some kind of bill of rights enumerating fundamental human rights of citizens
b. constitutional limitations on power of legislature
c. some organ of govt. checks the legislature
 prior to the Fr. Revolution, particularly in the middle ages, church and natural law vs.
constrained state power
 after Revolution, state was internally and externally sovereign, law is what sovereign
says it is, will of people is basis for lawcombines to make the idea of judicial
review problematic
 doctrine of separation of powers very different from the US doctrine of checks and
balancesFr. idea-separation of powers to subordinate courts to legislature
 after WWII: positivistic majoritarian theory came under attack
 how to reconcile legislative supremacy w/ legally enforceable human
rights?particularly when ordinary courts are not able to say a legislative action is
invalid
Constitutional law
 flexible (UK)
vs. Rigid (US, Aust.)
Rigid System: 2 subordinate models
1. Decentralized (US): all courts decide on constitutionality of any piece of
legislation-bound to follow US const.
 Switz: cantons laws can be declared unconst. by any court
 in theory, same in Scandanavia
 Germ. (1920’s), Italy (post WW2) experimentednot successful
2. centralized (Austria): Austrian const. of 1920-different mechanism for
policing rigid constitution
 only designated courts deal with questions of constitution
Why wasn’t US model successful?
1. theory of separation of powers: Europeans still thought judicial
interpretation is a political act encroaching on legislative powerthey set up
special, deliberately political courts organized to reflect major political
groupings in the nation
 cuts both ways: once you say const. court is political body, it feels free to
enter debates US courts say are “political questions” for Cong. to decide
2. absence of stare decisis: if allow any court to oveturn acts of parliament,
threaten to destabilize legal order-uncertainty-esp. bad if dealing with
interpretation of constitution
difficult for leg. to intervene-would have to amend constitution
3. unsuitability of civil law courts to deal with constitutional issues: high
civil courts have diff. structure than US SC-different panels, no power (or
reduced) to refuse cases, not suited to free-reeling rights’ based analysis US
judges prone to engage
Models that have been adopted:
1. The French model: based on 1958 constitution establishing Constitional Council
made up of past presidents and 9 people appointed by the legislature. Legislation sent
to council which checks them for constitutionality-reviewed anonymously, in secret,
not in case form (no ordinary marks of judicial proceeding)-political proceeding. If
wise statesmen OK it, law promulgated, no further challenge.
a. advantages: does ensure that at early stage, most laws do get some form of
independent review re: constitutional legality
b. disadvantages: if miss something-freedoms, rights, etc… conceivably violatednothing further can be done
c. Fr. attitude toward US legality is not sympathetic: govt. by judiciary
d. Recent trend: Fr. moving toward judicial review. Const. Council originally set
up as watchdog to make sure Leg. didn’t invade power of exec. branch. For last
25 years (since 1971), CC has claimed power to preview legislation to see if it
satifies general Republican principles-not just Fr. const, but declaration of rights
of man, etc…;
e. Conseil de etat: can review administrative actions in light of constitution and
general republican/democratic principles
f. ordinary courts/cassation: have announced they will interpret legislation in
accordance with Fr. constitutional law and EU law.
g. Thus Fr. court much more activist in way they interpret Fr. legislation
2. systems that set up some mechanism for judicial review: usually means setting up
an independent Constitutional Court
 various options:
a. procedure: sometimes court says JR confined to formal region-as long as
passed in const. manner, can’t review substance-procedurally-based
b. substantive: since 2nd WW, permit subst. review under constitution, find in
Austria, Italy, Spain, Germany…. dominant const. model on continent
 set up const. court w/ political function
 judges appointed so maj. of political spectrum get representation
 decisions binding on rest of govt., including other courts
 CC has exclusive jurisidiction to decide on constitutionality
 decisions binding
 procedures are judicial (contrast to Council in Fr.)-genuine court-like US
 jurisdiction of European CC’s goes beyond US Jpossible to have direct
attack on statute, even in absense of case or controversy
EU: European Community:
 grew up in post WWII Europe dealing with coal and steel production by France and
Germany-original six members: Benelux nations, Fr., Germ., It.UK stayed
aloof.Coal and Steel Communty
 general idea worked well in 50’s: in 1957, key single treaty signedTreaty of
Rome: established EEC-European Economic Community, European Atomic
CommunityEU-European Communities
 1965: Merger treaty consolidated separate communities’ bureacracies, kept separate
communities
 1970-UK, Ireland, Denmark joined communited
 1980: Greece
 1981: Spain and Portugal
 1986: Single European Treaty: amalgamated educational policy and the
environment, removal of internal barriers to the common market-reform bureacratic
structure of Europe
 Now Sweden, Finland, Austria from EFTA-European Free Trade Area joinedNorway still in EFTA, NATO
 1989: collapse of communism: new problem of entry by E. Europe nations
 problem: since E. nations much less strong economically than W., # of nations
high, would have to have more decentralized approachno U.S. of Europe
 big debate over limiting vs. expanding unity
 2 main issues: deepening interaction b/t member states (monetary union),
broadening of union
Important to recognize European Court of Justice has recognized that the original
treaties (Rome, etc….) set up a constitutional structure, so that member states and
individuals can assert themselves legally under these treaties.
Structure:
1. 3 political organs: not set up like US system-many overlapping functions-rather one
organ represents member states (council), community as a whole (commissioners),
and the peoples (parliament). Court (4th) also tends to side with communitycommissioners.
a. European Commission: often known as the acceloratorcomposed of 20
persons typically high-ranking politicians nominated by member states and
confirmed by European parliament for 5 year terms
 offices in Brussels
 staff of 15,000-25-30% are translators
 commissioners appointed by law “above national loyalties”-primary
allegiance to union, not member statesonce appointed, only removed if EU
parliament passes motion of censure against commission, removes entire
commission.
 president: appointed for renewable period of 2 years –Jacque Santerre
 proposes new rules, regulations-initiates all legislation, rulemaking. also does
some administration
 oversees function of EU, coordinates EU policies with those of nationstates


simple majority vote
called the accellorator: gets things going-also, b/c primary loyalty is to EU,
its out in front of other institutionsmore in favor of further intergration,
expansion of EU, constrained only by political reality of member states
b. European Parliament: weakest of the branches-principle function is advisoryhas 626 members elected every 5 years.plan to cap #s at 700
 approves annual budget
 exercises political supervision over executive (confirms members of
commission, president; can call them before parliament to explain selves)
 Treaty of Amsterdam: gives Parliament powers in certain areas to co-legislate
with commission
Legislative Procedure:
1. commission drafts legislation
2. council looks at it
3. parliament gets it for advisory opinion-may amend
4. commission gets it again-can decline or accept amendments
5. goes back to council: can either by supermajority-weighted majority adopt what
commission reccomments, or by unanimous vote can introduce own
amendmentsthen it becomes law
 real power lies in hands of commission and council, not parliamentnat. govt.s don’t
want to hand over too much power to supranational body
c. Council of the European Union (Council of Ministers): made up of ministers
of member states-typically foreign ministers (sec. of states). if meeting to discuss
economic policy or agriculture, get chancellors of exchequer or agricultural
ministers”the break”
 gives final approval to most EU legislation
 President: rotates every 6 months
 like commission, meets in Brussels (sometimes Luxenbourg)-has staff to deal
with rest of EU, etc…. so foreign offices don’t have to take on this job
 voting system: unanimity, need council and parliament for some legislation,
weighted voting by population (roughly) for others –Lux. 2, Germ. and UK10need supermajority to win-60 out of 82-fluctuates
 why “the brake”: foreign ministers sit in govt.s of member states-answer to
domestic constituents
 cannot initiate new legislation, but can block leg. coming out of commission
 can’t even amend leg., except by unanimous vote
 but can refuse to approve commission leg., thus blocking it
Foreign Relations of the European Union:
 will the EU evolve from the losely economic, env., etc.. body to a nation state
which will weild political power internationally (like the US)
 at the moment, several answers have emerged:
1. EU has emerged as a “person” under public international law
2. can exercise foreign policy powers, but in contrast to state, foreign policy powers
are limited to areas member states have delegated power to it2 ways it wields
power:
a. Eur. Court of Justice has said that where treaties have given EU foreign power
where needed to pursue internal goals”necessary and proper”EU given
internal power-if it needs to use external power to accomplish internal goals,
OK
b. common commercial policy: Treaty of Rome: E. Court has given this
broad interpretationintruded into foreign affairs.
 EU tends to have mixed treaties with other states to avoid legal problemstreaties with EU are with EU and member states
c. European Cooperation: not formally part of the union-member states retain
own policy, make own foreign policy, but have mandated meetings of the
European Council (Prime ministers and pres. of Commission)-Pres. of EC
same as whoever has presidency of EU
 most effective form of European foreign policy
 have by treaty agreed not to hinder the emergence of consensusif 12 of
13 are in favor of a policy-other members under obligation not strictly
enforceable to go along with majority vote
European Court of Justice: distinguish b/t this and European Court of Human Rightsseparate from EU-part of Council of Europe-enforces European convention on human
rights
 (also Council of the European Union (Ministers) separate from Council of Europe
too)
 15 members appointed by member states by consensus
 if private citizen brings action, hearing is before panel, if member state brings action,
entire court meets
 judgment handed down by court as a whole-no opinions or dissents
 9 judges advocate generalsadvisory body-like solicitor general’s office in US,
except don’t represent executive branches opinionsupposed to be independent,
represent all Europeans
 special court of first instance created 10 years ago to lessen admin. burden
 jurisdiction: economic matters generallycan issue 2 types of decisions
1. advisory opinions: at behest of council, commission, or member state, not
private citizenrelatively rare
2. judgments: 2 kinds
a. direct action: someone comes before European court asking for remedial
action or damages against the EU-individuals can do this, so can states
b. indirect actions: more significant-legal matter that’s gone through courts in
national court, and national court has run up against some issue of EU law,
says it needs to be referred to EC of J for its opinionreferred out of national
court system based on point of law
 gives the court great deal of power as to how EU law is applied in member
statesensures some uniformity in application of EU law
 sources of law: primary documents: treaties that set up EU-Rome,
subsidiary treaties and resolutions coming out of meetings of the European
Council, general principles of law, customary law, legal principles
followed in each of member states (not confined to interpreting and
applying Treaty of Rome and related treaties

Key issues:
1. Community law creates direct rights and obligations for citizens of member
statescontrast with principles of international law which do not do so (i.e. UN
resolutions)
2. Supremacy: National govt.s required to enforce EU law even if it conflicts with
national legislation, and even if the national legislation was passed after the EU
law—like supremacy clause of US constitution
 treaty of Rome didn’t contain explicit supremacy law-court simply decided
that treaty inferred this.
 member states could have freaked out, but instead governments thought
about it and decided it was a good thing for court to have this power, be
final arbiter about how Treaty of Rome interpreted.
 enforcement: in contrast to international law courts (Int. Ct.of Justice),
which have no power to force people to do anything, E. Ct. of J. has
explicit document to interpret, and has sanctions to place against nation
states who resist (none has). States have too much to gain by not
following court-so they always have. (like other branches vs. US S.C.)
 justices chosen have sterling reps as good judges, very fair, etc…
Future of the European Union:
 central problem is question of how to extend Union beyond existing arrangement2
primary components that are interrelated
1. Among member states, how is one to increase authority and power of the
Union?EU monetary union alreadywhat about immigration, agricultural,
health, etc… issues
2. geographical expansion of the union: how far should it extend toward the east?
 problems have always been there, are more pressing since communism collapse in
1989.
 other pan-European Institutions:
1. issues of human rights: Council of Europe, European Declaration of Human Rights
 Council of Europe: includes EU states + all other states of western and central
Europe
2. Defense:
 NATOWestern European Union + US and CanadaFr. wants more European
control
 Conference on Security and Cooperationwestern and neutral nationsarms
control and reduction of regional tensions
 ex. so if EU decides it wants coordinated foreign policywhat happens to
NATO?—Europe would want independent defense policy
 Over past decade, Union has deepened:
1. Single European Act of 1986
2. Maastrich Treaty
3. Treaty of Amsterdam
 stages of geographic integration:
a. Free trade area: NAFTA, etc..no tariffs or quotas b/t member states, but
member states retain tariffs and quotas against outside world



still need border controls on movements of goodsotherwise can launder
goods through free trade partners into nations with more strict quotas,
etc…
 how EU began
b. Customs Union: free trade area + coordinated external trade policystarting
to eliminate need for border controlsstill need people checking goods re:
different rates of value added taxes b/t nations
c. Single Market: might allow certain amount of leakage (VAT’s don’t have to
be the same, just within narrow range), harmonized commercial standards,
agency set up to regulate commerce b/t the states
 over past 12 years, movement through these stages toward c.
Single European Act of 1986:
 abolished single country veto power, provided for single market by end of 1992
 established freedoms of:
1. movement of goods: carrying goods across bordernot totally in place
2. movement of services: if running company, ought to be able to cross
national borders freelynot totally in place
3. movement of people:not in place, not likely to be there soon, esp. UK and
Ireland
 immigration issueUK insists on controlling own borders, passport
controls
4. movement of capital: basically in place
 once these were in place, made sense to move toward single market-one
central bank, currencylead to Maastrich Treaty
Maastrich Treaty: complicated, dense legal languagepart of reason treaty ran into
trouble
 Goals:
1. Increase authority of the EU: expand beyond economic to environmental,
defense, foreign policy, health, consumer protection, immigration, labor
lawdramatic widening of scope of EUfew functions of govt. left out
2. invisioned setting up common currency, central European bank: if state
wants to take part in monetary union, state had to bring budget deficit,
inflation down-those within band of approval could participate in first round
of common currency in 1998written when economic picture in europe, low
employment, was much better
3. reallocate power within the union: take foreign policy away from
commission, lodge it in the councilEU more an alliance than an integration
4. subsidiarity: powers not explicitly given to the union are reserved to the
member statesEU only has as much power as is strictly necessary to do
what it should, nothing more
 move to increase amount of consulting done not just with states, but with
regions within the states
 state like Bavaria, Normandy, Wales, governed as substatesEU deals
with this on limited basis, likely to increase in future
 key features to note:
1. enormously enlarged scope of EU function and power
2. kind of issues now being talked about are different from old economic
issuesabolishing currencies, military policy, immigration, foreign
policyhistorical record of strong differences in national opinion b/t
states, much more difficult to work out compromises
 THUS, for first time, in 1990’s saw adverse criticism all over Europe of
the increasing power of the EU
 general fear of losing national sovereigntyUK-hysterical
declarations in tabloids, on continent, various laws such as Fr. bread
laws, Germ. blood purity laws, thrown out as violating free exchange
of good across bordersnations being told they can’t regulate own
foodscares people
 part of problem was unintelligible nature of Treatyattempts to make
clearerin Amsterdam Treaty
 Treaty of Amsterdam: designed to streamline and modify existing treaties—4 areas
1. individual rights: fear of monolithic, undemocratic Eurobureacracyresponded
with guarantees against gross abuses of indiv. rights by nation states
 total freedom of movementno more passport controls, except UK and
Ireland, who opted out
 greater cooperation on immigration, visa, asylum policies
 greater emphasis on cooperation among police forces-drugs, organized crime
2. Social policy: EU decided to create its own social policyfocus on
unemployment at federal levelconservatives in UK fear EU forcing welfare
state back down throat where they spent 80’s getting rid of it.
 guarantees against racial, sexual discrimination in the workplace, equal pay
for equal work insisted onnumerous provisions aimed at bettering working
conditions
 health, consumer protection
3. Unifying external foreign policy of Union: very tentative stepsUnanimity in
the council
 peacekeeping to be supported by the Uniongreater cooperation
4. Strengthens various EU institutionsinc. power of parliament,
courtemployment and racial discrimination
Principle Problems for the Future:
1. Monetary Union: states, despite problems it caused and unemployment,
most states brought selves into linemost of W. Europe comes in except
Sweden, UK, and Greece (UK decided to opt out)
a. European Central Bank in existencealready creating currency; in 3
weeks, Euro comes on line; 3 years from now –1/1/02-bills and coins
come onto street, 6 years later national currencies will be phased out
b. controversy:
 tangible symbol of surrender of national sovereignty to Europe:
present currencies have national heros, monuments, but Euros will
have anticeptic non-existent buildings
 more substantial economic level:
1) arguments for Union:
a) reduce transaction costs, make it easier for large corp. doing
business across Europe to do it in a particular way.
b) single currency with lots of medium sized nations under
itEuro becomes reserve currency like US dollar, yen for
investors to leave money in
2) arguments against:
a) who will be head of central bank? 11 of 12 who met criteria
said they wanted Dutch banker to be head of bank-would run it
as US Federal Reserve Bank or Bundesbank (Germ., UK, Fr.,
US)-sharply insulated from political pressure, to keep down
insulationstable currency; IT. has lots of intervention in
Federal Bank-govt. can order central bank to print more
notesmuch weaker currency. FR said they’d torpedo
operation, unless FR. gets to be head of bank at some point
 compromise-Dutch stays 4 years, then Fr.
 people critical of Kohl for agreeing to thissent shiver
through Germ. and Benelux
b) UKdiff. fear of loss of national sovereignty, also deeper
argument: not obvious why giving up pound, having central
banks gives up power to Europenations still keep taxing and
spending policies
 if business booming in Spain, but not Netherlands: in past,
Neth. could devalue currency, making their goods and
services cheapermore outsiders will buy Dutch goods,
etc..get rid of unemploymentcan’t do this without own
currency
 also have new restrictions on tax and spending:
 less able to pick up and move to better economies, due to
difference in languagesbarriers to migrate to Spain
 Thus if abolish currenciescreate serious tensions and
strains, remove best mechanisms to deal with those strains
 only proposed answer is for EU to distribute $ to poorer
nations from richer nationsspecter of massive strong
central European govt.
So what do things we have covered have to say about European Integration?
 think of course as whole as elaboration of Romansidea that grew up during
Republic-conflicts shouldn’t be decided by blood fights, but by proceedings presided
over by scholarly, impartial jurists using legal tradition
 in that way, serve interests of abstract justice and predictability and efficiency
 everything we’ve covered is an elaboration of that idea going on for 2500 years
 development of the statetrying to subject it to rational constraints
 private law: develop basic rules applied by jurists to deal with basic issues of
property distribution, family law, marriage, agreements, criminal law, etc..
 so why has it taken so long?
1. std. model: complicated interaction b/t reasons people have for wanting
complicated legal institutions and institutions they actually have.


investiture controversy: accidental angry dispute b/t pope and emperorchurch
won, was in control of church and schools for 400 yearsspread their conception
of legitimate authority of secular leaders as constrained by natural law of God
 at numerous points, see inherent institution come unglued from reasons that
brought it into existence in first place
 feudalism: once no need for knightsrethinking of system
 way of organizing European political landscapealong lines of nation
state2 WW’smaybe not best waysupernational organization-EU?
once institutions and reasons come unglued, need new institutions to fill the
gapvery complicated
 interaction b/t what you do to one part of legal system and what happens
elsewhere
 roles of jurists, judges, legislatureif give additional power to one, reduce to
other
 never quite sure if you tinker with one part of system, where you go to change
another
 not surprising that project of setting up EU as coal and steel, decreasing
warfareends up as affecting immigration, health, etc..K, tort law will be
affected
2. Never sure over long hall how much effect changing legal institution will have:
changers never knew where their changes would go, from Rome on.
All together, not at all surprising that European law unpredictable