Reading 1: Introduction to this
Chapter
ANNOTATED
SECTION WITH NOTATION
AND CRITIQUE BY THOMAS RUFNER.
Updated:
August 1, 2003 (read and updated on August 28) (updated October 9)
Need
to get a copy of the instructions that were given to the Iudex when the Praetor
gave him a case
Need
to get a copy of Schultz book for possible use with next version of the Book
[ Roemisches Privatrecht, 17. Auflage, Kaser,
Knuettel]
Verlag
C. H. Beck. : look at page 479]
This chapter is
about the sources of law in Germany and other Civil Law nationsLaws
and how the historical development of Germany within the Civilian Legal sSystem,
influenced in the past and determines today the way judges, university
scholars, legislators, and lawyers interact to create and apply the law.
In order to understand the essential
systemic differences between the Anglo-American legal system, the Common Law,
and the German system, the Civil Law, one needs to know some history. Therefore, the first topic that is discussed
in this chapter’s reading is the historical development of the Civil Law
System. This topic involves finding answers to the following
questions: How old is the Civil law
system? Who developed and used this system of law first? How was this system of
law spread to other nations and other peoples? How did this system of law
develop and change over time? Reading
2 provides a discussion of the historical roots of the Civil Law System.
The student will discoverin
find in Reading 2 that there is a European legal inheritance and
this comes from ancient
Rome. BIt
might be a good idea to consider before dealing with the documents
and readings in
this chapter, it might be a good idea to consider first the question why
the Romans left behind a legacy in law and language that exists to this day.
Historians will explain that the
Roman Empire existed in Western Europe from about seven hundred and fifty years
before the Common Era until the end of the 5th century in the Common
Era. It stretched at its zenith, in the second century of the Common Era, from Egypt
in the south to England in the nNorth. Never before and never again in European
history was so much territory governed by one people [ruled by one government ] for
such a long period of time. If one looks at a map today, the European nations
which came under Roman administration in the ancient period included
Spain, Portugal, Italy, France, England, Germany (parts), Austria, Romania,
Belgium, Serbia, Croatia, Bosnia, Greece, and Turkey.
[
map of Roman Europe]
The Dalton
School in the United States has a map, on the internet, which is excellent and might be
used for this purpose.
[ von Anfang war – provincen Romaniziert.. einheimischen Volker in der Regierung
Koeln- war Romischen colony- Romer sind hierher
gekommen... von Zeit zur Zeit..
Lateinischen Bund- neue Staedte gegrundet.— Sie hat
alle Recht—assuer Wahlrechte...
Vorstufe zur romasichen Burgerrecht...
Latinischen Recht—Gemeinde
Rat—lokalen Eliten
kamen in der Gemeinden Rat-
Frankreich und Spanien sehr starkt romaniziert
In order to govern
such a large empire, the Romans had to develop sophisticated legal and
political structures. As well, the Roman was an empire based on trade and
commerce. HLegal
historians postulate that international trade facilitates the
development of more sophisticated legal structures.[1] Therefore, on account of the geographic size
of the empire, and on account of the importance of trade between peoples within
the empire, a sophisticated legal system blossomed and developed over a period
of more than twelve hundred years. To give this figure, twelve hundred years
some context, one might remember that the
period from Columbus sailing to America and Neil Armstrong walking on the moon landing
is just
under five hundred only four hundred and eighty-eight years.
The time
period between the birth of the Common Law System in
the 11th century and today is a little more thans only nine hundred900
years.
Other legal historians point out that Roman law developed a sophistication,
which few other ancient systems possessed, on account of the fact that in the
Roman Republic and the Roman Empire there arose a class of professional
jurists. Bruce W. Frier writes:
The jurists began to
study and manipulate the materials of private law in a disciplined, rational
fashion: they enunciated and organized existing legal rules in a convincing presentation, they
discovered and described the systemic boundaries and internal articulation of
private law, they deduced fundamental principles and concepts of law, and they
applied these principles and concepts in the coherent development of new legal
rules and institutions.[2]
Fritz Schultz[3], a well-known legal
historian agrees with Frier about the significance of the Jurisconsults and the impact
that this class of legal professionals had upon the development of Roman law. He contrasts Roman
legal development with
that of ancient Greece and comes to the conclusion that:
The history of Greek
law demonstrates that Hellenistic forensic rhetoric was incapable of producing
a legal science. As of the philosopher, so of the Roman
jurisconsult, it may be said that he despised words and sought truth with a single mind…[4]
As well, Schultz
contrasts the Hellenistic system of education, which was very general and broad in scope, with the very narrow and
technical education
of Jurisconsults in the Roman world. A student who wanted to
become a Jurisconsult in ancient Rome did so through a
type of apprenticeship. He took up residence in the house of a Jurisconsult and
“accompanied the master to the
forum” as well as discussed cases and readings with him in the evening.[5]
[fruhen
Phrasen.. Romer
haben sicher.nicht das alte
System...ersetzt.. Richter
aus Rom sind gekommen
und Influss ausgeubt…
[Es
gab keine Professionale Rechtwissenschaftler—Fritz Schultz- der nach England- „History
of Roman Legal Science“ in England- veroffentlicht.. – Er war Professor in Bonn und Berlin, nach der Machtergreifung...] 1936 erste
Ausgabe
Seine Frau war die Tochter des Rabinner..
[1900
– Romanisten und Germanisten—Savigny- die Historische Schule gegrundet-
juristische Varianten der romanischtishcen.. Kampf gegen Napoleon.. Savigny kam aus der
Tradition.. Das Recht ist geschichtlich verbunden- Wir mussen heraufinden..
Gewissen Spuren haben fuer eine lange Zeite
uberlebt... [Savigny sah nur
geschichtliche und ungeschictliche Schule]
BGB- -
sehr mit Romischen Recht verbunden als Code Civil-
Entwurf
fuer die Volksrecht- als ersetz fuer die BGB wahrend die Nazi Zeit gemass der Ideen, die in der
Partei gefunden sind.
Code Civil- enthaelt mehr von dem Germanen..Sud
Frankreich—Nord Frankreich:
Droit
Coutumier
Wissenschaft
betrieben... professionale Juristen... [ The Romans had developed a professional class of
jurists and this also
affected the development of Roman law- Schultz argues this in his book]
So over a period of more than
twelve hundred years, the Romans developed one legal and three distinct
political systems (monarchy, republic, and empire) for the governance of their
territories. What was the nature of their legal system? How did its rules develop?
The earliest Roman laws and
traditions were oral and thesre were
adapted for the needs of a small city-state in the ancient period. During the
early republican period, in the 6th century before Christ, Rome was
a society strictly divided by class; political rights and privileges were
determined entirely by birth. The Patrician class dominated
Roman society and its members, and in order to hold on to power, they controlled
and manned the courts as well as all of the religious and political offices. In
the fifth century, the Plebeian class, which constituted the majority of the
population and provided the vast majority of soldiers of the Roman army, began
to demand more rights. Over a period of about two hundred years, which
historians today label the Struggle of the Orders, Plebeians gained access to
positions of political and economic power.
Some Events in the
Struggle of the Orders
Publication of the
Twelve Tables of Law 451-450
B.C.
Lex Canuleia: Right
of plebeians to marry 445 B.C.
Patricians
Licinian-Sextian
laws: One consul may be a 367 B.C.
Lex Hortensia: Laws
passed by plebeian council are
binding on all
Romans 287 B.C.
(Jackson J.
Spielvogel, Western Civilization, (Softcover comprehensive volume)
St. Paul Minn.: West Publishing Company,
1998. Page 133)
[
Main legal events of the Struggle of the Orders]
Reinhard Zimmermann, 1996, 576, Law Quarterly Review. “Savigny’s Legacy: Legal History, Comparative Law,
and the Emergence of a European Legal Science”
[
Er ist jetzt in Hamburg Professor)
One of the first
demands made by the Plebeians during the Struggle of the Orders was the
publishing of the legal rules that set out rights in Roman society. The
Plebeians believed that if they could read the law, they had a better chance of
protecting themselves in legal hearings beforein the
courts administered by Patricians. The Twelve Tables of the Law written aroundin
450 B.C.5
is one of the first sources of Roman legal rules, and it is an important source
of the Western legal tradition.
As Rome expanded its territory in the
first century before Christ, and entered the imperial phrase of its
development, there were three main legal figures, the Praetoer, the Iudreix
and the Jurisconsult who took prominence. The Prater was the chief legal
officer and parties came to him in order to start a legal suit. He would
determine which legal principles applied, and he appointed anleft it up to the Iudreix for theis case, who was charged withoccupied
a judge-like post, to
findingd
the facts and applyingy the
law that the Praetor Iurix had
set out in his trial instructions. Because Rome was involved in international
trade, and on account of the fact that the Romans recognized that not all
persons were subject to all parts of Roman law, there was also a
Peregrine Praetoer
appointed in the 4th century before Christ. His job was similar to
the regular Praetoer,,
however, his cases always involved disputes
between non-Roman and Roman citizens. It was the task of the Peregrine Praetoer to determine which Roman legal practices
bound the foreigner and which did not.
[like a charge for the jury: gibt es—das und das zu herausfinden—und wenn ihr
dies und dies finden wurden,
sollen sie die folgende Entscheidung treffen...Iudex ist dort nur fuer ein Verfahren..
Hier ist ein Beispiel:
Der
soll Richter sein.
Specific
instructions were given to the Iudex.
The Jurisconsults
were the most important of the three legal figures in terms of Roman legal
development and its legacy to modern Europe.
TodayIn
the history of law in the West, there
is no group of persons whobefore or since
that occupy
a similar (other than Talmud Commentators) position.[6]
The Jurisconsults were not often trial lawyerslawyers or barristers, though some of them
and they did
not usually represent clients before the
courts
for pay. As well, they were usually not judges or administrators of law
for the government, because these positions were filled by the Iudreix
and Praetor already.[7]
What the Jurisconsults did was provide for the courts and parties to legal
disputes written opinions about the state of the law, and interestingly enough
they usually they did this free of charge. Roman law then developed based on imperial
statutes, the
edicts of praetors[8], and the
accretion of these scholarly opinions. When providing these opinions, tThe
Jurisconsults did
not limit themselves tohas
no concern when providing opinions, about discussing
not only how the case at hand should
be resolved, but they
also considered
how hypothetical cases with similar or even slightly different
facts patterns
mightshould
be decided.
Interesingly enough,
alongside
the Jurisconsultsl, there developed
[
Der Jurisconsulte hat dem Praetor mit der Formulierung geholfen]
Juristen in Consilium-
[In
fact there developeda a
class of orators and these persons
who would represent clients
and make speeches beforeaddress
the courts. with 100
sitting judge/jurors. The
Jurisconsults were considered too technical and too thorough to persuade courts; persons
trained in rhetoric, but not Jjurisconsults, were viewed
as the better
persons to address the juries.[9]ry.]
In the 3rd, 4th,
and 5th centuries, the Roman Empire in the West declined. Historians
may debate the reasons for the fall of the Empire, however, what is certain is
that Germanic Tribes from Northern and Central Europe overran the Italian
Peninsula and finished off what was left of Roman rule in the 5th centurycentury. .
[In
terms of this book, and its focus on German legal development, and in order for
the student to understand why Roman law declined in the 5th
century, one needs to consider who were these German tribes and what were their
legal traditions, and how do they relate to the Germans of today? ]
Schutz:
Faithful to the pontifical tradition, they were not mere partisans, ready to
forward a client’s
cause by any and every available mans, including falsehood,
but guardians and promoters of the law.”
Seite
55, History of Roman Legal Science, Fritz Schulz, Oxford, Clarendon Press,
1946, 1953 edition, based on corrected notes of 1946 edition.
[Senatoren oder Ritter—die meisten war aus dem Obergeschicht.. Ulpian hat
hohen Ampte
besitz]
Wolfgang Kunkel, Die Roemischen Juristen, Herkunft
und soziale Stellung,
Kunkel hat sich darum gekummert uber die Herrkunft
dieser Jurisconsults... ob
ihre Herrkunft aus Rom sind.. er denkt, dass diese Klasse aus Rom stammten..und
nicht aus dem besitzen Territorium...
Julian war hier in Bonn Koln..er war Jurisconsult..
und er war in Militaer...[ Is
there a statute of Julian to be found in the Romisches-Germanisches Museum?]
A good portion of
the Roman legal tradition died in the western part of the empire with the last
emperor. For a period of about five hundred years thereafter, which historians
label the Dark Ages,s
[Dunkel Zeitalter-
Zeit von Volkerwanderung] , western
European society actually
actually regressed. While some of the
Germanic Tribes were more or less Romanized, others were less politically
and legally less
sophisticated.
What do the Germanic
invasionses this mean in terms of the history of law? For
example, whereas the Roman Emperors may have been brutal and power hungry, they
all read and wrote Latin or Greek Latin fluently. Many of the
Germanic kings in comparison could neither read nor write. Theirs was an
entirely verbal world. It was Charlemagne the great king of the Franks, three
hundred years after the Roman Empire fell, who set a new standard by learning
to read. He rekindled the tradition of literate European leaders. During the Dark
Ages,,
legal disputes
were solved by the illiterate kings of the various
Germanic tribes who had settled in what had been the Roman Empirerather
than courts and judges, legal disputes
were often solved by the illiterate kings of the
various German tribes who lived in what had been the Roman Empire.
LIn
the Dark Ages legal disputes during the Dark Ages as well might bewere
also resolved by trial by combat oras well as
trial by ordeal. Superstition, belief in divine intervention, kingly assessment
and/or brute force replaced in the Dark Ages what had been the sophisticated
court procedures, complicated legal rules, and the scholarly interpretation of the casesprecedents
and legislation of the Romans.
[Gesetze gemacht: Eins fuer Gemanischen , eins fuer Romanischen Burgen..
Spanien..
2 Gesetze gemacht..-
While the various
Germanic Tribes battled each other for territory in Western Europe, the Roman
Empire did survive in Eastern Europe and the Middle Eastn ,
with its capital Constantinople. Emperor Justinian, fearing that the great
legal tradition of Rome would be lost, ordered that a commission of Jurists
prepare a compilation of Roman law.
This compilation is one of the most famous legal documents in Western
legal history and we know it today as the Justinian Compilation
Code. The
Justinian Compilation saved many of the writings of the Jurisconsults and it
contained as well imperial statutes.
While Roman law got
a new lease on life in the Eastern Roman Empire though the Justinian Compilation,
during the early Middle Ages in the Western Europe, Roman law was largely
dormant. Its legal rules and its
complicated principles developed to suit the needs of a commercially oriented
society did not seem applicable or highly useful to the Europe of the Dark Ages
in which trade and commerce were highly restricted, in which rival tribes
battled each other for small parcels of territory, and in which the road and
transportation system of the Romans fell into disrepair and disuse.
However, in the high Middle Ages when Europe
developed a more stable political system and a more developed economy, it
became clear that the legal dispute mechanisms, the rules of trial by combat
and ordeal or the ad hoc decision making of the king or tribal leader were no
longer sufficient to deal with the disputes that arose. Scholars at newly formed universities,
primarily in Italy, started looking for structures and rules which would
enhance and protect the more stable and more developed economic and political
structure which was emerging in Europe in the period just preceding and during
the Renaissance. Eventually,
scholars turned to Roman law because of its sophistication and adaptability.
In reading 3 of this chapter, the rest of this
story,
about the development of the civil law system is continued.
Reading 3 explains how Roman law was reintroduced to Western Europe. As well,
it deals with
codification, which became very significant in the development of the
Civil Law system in the nineteenth century.
We have spent a lot of time discussing the
historical development of the Civil Law system. Let’s look at our
own system and consider how its historical development determines today how
lawyers, judges, academics, and legislators apply, use and create the law. The
legal system of the United States, Britain, Australia and Canada is the Common
Law. The Common Law system developed in England after the Norman Conquest in
1066. In this sense, ours is a newer system than the German Civil Law system,
whose roots can be traced back to the ancient Romans.
The key factors to understand in terms of
the development of the Common Law are these. Common law developed on an island.
Therefore, on account of geography, and the historical fact that after 1066,
the English mainland was never again conquered, the English Common Law
developed relatively free from the influence of other nations. Put another way,
the English system remained for a large number of years unique to England.[10]
The reason why this somewhat curious and idiosyncratic system spread around the
world, and is significant today, has to do with England’s world empire, which
occurred after, not prior to the development of its legal system.
The second major
factor concerning the development of English law is that this system was to a
large extent made by judges for judges. What does the phrase, found in reading
2, “made by judges for judges” mean?
Consider the first paragraph of reading one. We said that in this
chapter, we are going to look at how judges, university scholars, lawyers, and
legislators interact to create and apply law. The meaning of the quote above
must be, that the English system was one where university scholars and
legislators played a much smaller role in the development of legal rules
historically and comparatively speaking, and judges played a much larger role.
Why was this? First of all, when England
was conquered in 1066, there was already a legal system, primitive as it might
be, in place. This was the system of the Saxons. After the Norman Conquest,
there was a second system superimposed upon the first, the Norman. What came to
be known as Common Law were in fact those rules enunciated by the courts,
chosen from one system or the other, which became binding upon all citizens,
Normans and Saxons alike. So initially it was the judges who said which rules
from the Saxon tradition and which rules from the Normal applied to all
citizens, and they determined through these choices the shape of the law.
Second, in order to understand the power of
the courts to make and apply the law, one must start with the proposition that
in 1066 England was a feudal state with an absolute monarch. This means that
all laws were enacted with the authority of the king; there was no Parliament
or council of elders to enact legislation.
Over time however the king became tired of
hearing all the disputes, primarily between barons, and he delegated his
decision-making authority to a person or group of persons on the Curia Regis.
The king’s Curia Regis might be regarded today as the forerunner of the modern
cabinet, and in the twelfth and thirteenth centuries, it was made up often of
the most educated and powerful persons in the land. In the thirteenth century, disputes were heard by “judges” of the
Common Law Courts in Westminster appointed by the king; they sat in his place
and determined the outcome, in his name, of legal disputes.
So in a very real sense, from the earliest
period, the courts both made and applied legal rules, and it was only
afterwards that there was a Parliament, and it was only much later after that
that Parliament obtained, subsequent to a series of struggles with the King,
the power to promulgate legal rules binding on citizens.
While what occurred in the 13th
century is very significant, an examination of the legal system in place in the
18th and 19th centuries brings our discussion even
further. At this period of time, there was a Parliament and fine universities
at Oxford and Cambridge. However, law and the law making process, particularly
in the realm of civil law (torts and contracts), remained to a large extent the
domain of judges and barristers in London. While some judges and barristers
certainly did attend Oxford and Cambridge Universities prior to coming to
London to learn and practice law, official legal education of barristers was
confined to and conducted at the Inns of Courts. Law students resided at one of
these “inns” and their study day consisted of reading case reports and visiting
courts followed by dinners over which the legal arguments presented in court
and found in case reports that day were discussed.
Therefore, within this closed system, there
was very little influence from either university scholars at Oxford or
Cambridge, or from Parliament. Judges heard disputes between parties and
rendered decisions. Their decisions were based upon the evidence that they
heard in court and the reports of cases concerning what other judges on the courts
had heard and determined. In this way, in this period of time, the system of
precedent was further developed and refined. Judges of the Common Law and
Equity Courts determined their rules on the basis of conscience and the reports
of decisions rendered by judges in the past.
In order to best represent his client, a
nineteenth-century London barrister prior to trial needed to read the
statements of judges, found in law reports. It was with these printed
statements that the law was delineated and could be used to defend and define
the rights of parties involved in litigation.
It was only subsequent to the development of
rules in many fields of law that Parliament in England began to override the
decisions of judges and introduce new legal rules. Many of these new legal
rules, statutes, were introduced in the nineteenth century to ameliorate the
worst abuses of the industrial revolution. For example, according to the common
law cases, work conditions were determined by contract and this was a signed
document created after bargaining was completed between the employer and the
employee. To protect children from unscrupulous factory owners, Parliament
changed judge-made law and enacted legislation (the Factory Acts)[11]
overriding freedom of contract between factory owners and children. Ultimately, legislative protection was
afforded to women who worked, and then to all employees.
In the story of the development of the
courts in England and the reaction of Parliament to abuses of industrialization
one sees the use and interaction of the two major sources of law in the
Anglo-American world, statute law and case law. Statutes were enacted when Parliament believed that judge-made
legal rules failed to protect individuals, such as women or children, or failed
to uphold national interests or standards.
Today one may argue that the court’s task
is to apply the law and the legislator’s is to make the law. However, this is a
modern development and view in the United Kingdom, Canada, and the United
States and in any event, judicial interpretation of statutes and judicial
statements remain important sources of law even today.
The Germans have a very different legal
history and therefore a very different legal tradition. There are at least
three major factors to consider.
First, the Germans, like other continental
Europeans, inherited a series of sophisticated legal rules from the ancient
Romans. Therefore, unlike the English courts, which developed rules as they
went along, the German courts had a set of rules in place, which they could
access. It became the job of the German
judges to apply the more sophisticated Roman rules to the cases that arose in
their courts, which could not be solved by local German custom. Like German
scholars, English scholars too were heirs to the Roman legal tradition. English
scholars had traveled, like other European professors of that time, to the
great Italian law universities, Pisa and Bologna. The English scholars, like
the other Europeans, had been taught about the Justinian Compilation. However,
the principles of the Justinian Compilation did not transmit from the English
Universities to the English court system. There were a number of reasons for
this. First, English barristers were not trained at university, but rather at
one of the four Inns of Court. Therefore they generally did not have contact
with law professors during their legal training. Second, unlike their more independent English counterparts,
German judges were often trained at and continued to work with university
scholars in the interpretation and development of legal rules. When German
judges did not know how to solve a case, they often sent the files to
universities. This process was called Aktenversendung. During Aktenversendung,
university professors looked at Roman law and provided written legal answers
based on their scholarship. These answers were sent back to the courts and the
judges applied the principles mentioned by university professors in their
answers to the courts’ questions. In this way, the written commentaries of
university scholars, which were often based on Roman sources, became decisive
in determining the legal rules applied in German (and almost all continental)
court cases.
Third in the eighteenth and nineteenth
centuries, Civil Law nations developed codes. A code is another word for
statute, or law made by the legislature. In France, the Code civil des
français, and in Germany, the Bürgerliches Gesetzbuch, provided a
complete series of rules for most cases which the judge simply had to
apply.
So putting all of this together, German
judges and lawyers of the early twentieth century, unlike their English or
American counterparts, obtained their training in part at university. Therefore
the influence of university professors upon the legal system was greater.
German judges also looked at the commentaries and writings of university
professors, rather than the opinions other judges, in order to solve cases. As
well, judges in Germany did not have to create legal rules as they went along,
like their British and American counterparts, because the legal rules were all
set out in one statute ahead of time, which incorporated the best of German and
Roman scholarship.
To some extent, when comparing the
Anglo-American judge with the German, the English speaking judge appears much
more independent of both the university system and the legislature, than her
German trained counterpart. It is often said that the German judge of the early
twentieth century was considered a civil servant who was there to apply the
law, not make the law.
Today this characterization of German
judges may no longer be accurate. To be
fair and even-handed, one must point out that the two systems, Civil Law and
Common Law, have become more similar during the course of the twentieth
century. In the Common law world, one finds more and more statutes, and these
have replaced in many fields of law, the written rules enunciated by judges in
cases. In Civil Law nations, jurists have discovered gaps in the codes. These
gaps often need to be filled through judicial interpretation and innovation.[12]
As well, the words used in the codes sometimes are not clear. Therefore, they
are in need of interpretation. Judges in the Civil Law world have interpreted
the meaning of words in the code, and through their interpretations, created
law.
1. Where do we find the Civil Law system
operating today in the world?
2. Why do we trace
the origins of the Civil Law system to law of Rome?
3. What is the
importance of the Justinian compilation of Roman law?
4. Why do we say
that Roman law was "rediscovered" after the Middle Ages?
5. What was the influence of Northern Italian
universities upon the development of Civil law? Remember, legal scholars from
all over Europe came to study at Padua and Bologna and after their studies
returned home to found centers of legal scholarship in Germany, Poland, France,
Russia and Holland.
6. What was the
significance of the French Civil Code of 1804 and the German Civil Code of
1896?
7. What nations
around the world have been influenced by the French Civil Code and the French
legal tradition?
8. What nations in
Europe and around the world have been influenced by the German Civil Code of
1896?
9. What are the
major sources of law in the Civil Law System today? (Statute, a decided line of
cases, commentaries)
10. Why could one
argue that the differences between the Civil Law system and the Common law
systems are fewer today than one hundred years ago?
The three categories
of differences [between the Common Law World and the Civil Law World] have been
stated as follows:
a. Judge-made law
vs. Codification (It is often said that
Common Law is judge-made law whereas Civil Law is comprised mainly of codes.)
b. Common Law has a
principle of stare decisis and the Civilian system does not.
c. The Common law has more technical rules of
procedure whereas the Civil law system has more liberal procedural rules?
The
Justinian Code
*saving
writings of the Jurisconsults principle by principle and not case by case
Roman
law to a large extent had been based on imperial statutes ( laws passed by the
emperors) and the opinions of the
Jurisconsults.
Edict von Praetor: was er machen wurde..
Eine Rede, wenn er zum Amt gekommen ist, wie er diese Faelle entscheiden wird..
Jedes Jahr.. in dem Jahr 200... Kaiser Hadrian hat gesagt.. diese Edict kann
nicht mehr geandert werden.
Schiften der Jurisconsults entwickelt uber
Kommentar von diesem Edicted.
To
some extent one might claim that Roman sources of law then were similar to
Common Law sources of today: statutes and cases (judge’s opinions). The
difference of course is that with Roman law, it was not judge’s opinions that
were kept and used as precedent but rather the opinions of the
Jurisconsults. Despite this difference,
one can see similarities between the sources of Roman Law in the ancient period
and Common Law in that today in Anglo-American world we learn the law by
looking at specific examples of when it has been applied, cases. A general
principle of law or legal rule is often extrapolated from a specific case
involving facts and a discussion of the rules to be applied by a judge. We call
a principle of law based upon judicial opinion precedent.
[
Fritz Prinzheim, Cambridge Law Journal, The inner relationship
between English and Roman Law, 1935..
Schuler
stellen Fragen…
Watson:
Justinian Code: Corpus Juris: [ Justinian Compilations]
Justinian Compilations: translation of Corpus Juris
Civilis
However,
when the jurists working in Constantinople put together their compilation of
Roman law, they did not save the legal writings in their original form. Rather,
they cut up the writings of the Jurisconsults and pasted back them together
topic by topic. What this process of cutting and pasting, done by the
commission of Jurists in Constantinople achieved, was that it changed the
content of the source of law. It
created a code of law which no longer was linked to a case by case discussion,
but rather a topic by topic discussion. Legal rules were enunciated in broad
terms in the new code, principle by principle, rather than being tied to a
specific fact pattern and a discussion of the rules of law that should be
applied to resolve the disputes arising from that fact pattern. Thise method for
saving Roman law chosen by the
commission of Jurists for saving
Roman law would have a profound impact upon the future
development of the civil law system. After the Justinian Code, oOn the European
continent when a jurist conceived law, she thought of a general principle which
could be applied to a specific case, rather than of a specific case from which
a general principle could be derived and applied to other similar factual
situations.
Edict – und kommentar-
Verkurz- aber das Charakter ist nicht verandert..
Mittelaterlich- wenn nicht Fall orientiert.. [
later in the middle ages, cases fell away]
While
Roman law got a new lease on life in the Eastern Roman Empire though the
Justinian Codecodification,
during the early Middle Ages in the Western Europe, Roman law was largely
dormant. Its legal rules and its
complicated principles developed
to suit the needs of a commercially oriented society did not seem applicable or
highly useful to the Europe of the Dark Ages in which trade and commerce were
highly restricted, in which rival tribes battled each other for small parcels
of territory, and in which the road
and transportation system of the Romans fell into disrepair and disuse.
However,
in the high Middle Ages when Europe developed a more stable political system
and a more developed economy, it became clear that the legal dispute
mechanisms, the rules of trial by combat and ordeal or the ad hoc decision
making of the king or tribal leader were no longer sufficient to deal with the
disputes that arose. Scholars at newly
formed universities, primarily in Italy, started looking for structures and
rules which would enhance and protect the more stable and more
developedsophisticated
economic and political structure which was emerging in Europe in the period
preceding and during the Renaissance.
[ Die Handschriften des Gesten wurder
wiedergefunden.... sie wurden gefunden weil viele Interesse daran hatten]
Discussion
of Padua and Bologna and reintroduction of Roman Law to Western Europe.
Theologie,
und Philosophie—
Bibel interpreteren—Principien.. – die Gestaltet das fullig um.
Aktenversendung
Codification
of Napoleon
The
second topic concerns the sources of law in the Civil Law system today and the
methods by which legal rules are developed and applied.
What
makes the discussion of these two topics a little complicated, is that the
sources of law today, and the methods developed and used by judges, lawyers,
academics, and legislators to delineate and apply the law, are connected up
with the historical development of the legal system.
We
have spent a lot of time discussing the historical development of the Civil Law
System.
Let’s
start with look
at our own system and consider how its historical
development determines today how lawyers, judges, academics, and legislators
apply, use and create the law. The legal system of the United States, Britain,
Australia and Canada is Common Law. The Common Law system developed in England
after the Norman Conquest in 1066. In this sense, ours is a newer system than
the German Civil Law System, whose roots can be traced back to the ancient
Romans.
The
key factors to understand in terms of the development of the Common Law are
these.
Common
law developed on an island. Therefore, on account of geography, and the
historical fact that after 1066, the English mainland was never again
conquered, the English Common Law developed relatively free from the influence
of other nations. Put another way, the English system remained for a large
number of years unique to England. The reason this somewhat curious and
idiosyncratic system spread around the world, and is significant today, has to
do with England’s world empire, which occurred after, not prior to the
development of its legal system.
The
second major factor concerning the development of English law is that this
system was to a large extent made by judges for judges. What does the phrase,
found in reading 2, “made by judges for judges” mean? Go back to the first paragraph. We said that we are going to look
at how judges, university scholars, lawyers, and legislators created and apply
law. Obviously, the English system was one where university scholars and
legislators played a much smaller role in the development of legal rules
historically speaking, and judges played a much larger role.
Why
was this? First of all, when England was conquered in 1066, there was already a
legal system, primitive as it might be, in place. This was the system of the
Saxons. After the Norman Conquest, there was a second system superimposed upon
the first, the Norman. What came to be known as Common Law were in fact those
rules enunciated by the Courts, chosen from one system or the other, which
became binding upon all citizens, Normans and Saxons alike. So initially it was
the judges who said which rules from the Saxon tradition and which rules from
the Normal applied to all citizens, and they determined through these choices
the shape of the law.
Second,
in order to understand the power of the courts to make and apply the law, one
must start with the proposition that in 1066 England was a feudal state with an
absolute monarch. This means that all laws were enacted with the authority of
the king; there was no Parliament or council of elders to enact
legislation.
Gordley,
professor of civil law at Berkeley, hat geschrieben.
Over
time however the king became tired of hearing all the disputes, primarily
between barons, and he delegated his decision making authority to a person or
group of persons on the Curia Regis. The king’s Curia Regis might be regarded
today as the forerunner of the modern cabinet, and in the twelfth and
thirteenth centuries, it was made up often of the most educated and powerful
persons in the land. In the thirteenth
century disputes were heard by “judges” of the Common Law Courts in Westminster
appointed by the king; they sat in his place and determined
the outcome, in his name, of
legal disputes.
So
in a very real sense, from the earliest period, the courts both made and
applied legal rules, and it was only afterwards that there was a Parliament,
and it was only much later after that that Parliament obtained, subsequent to a
series of struggles with the King, the power to promulgate legal rules binding
on citizens.
While
what occurred in the 13th
century is very significant, an examination of the legal system in place in the
18th and 19th
centuries brings our discussion even further. At this period of time, there was
a Parliament and fine universities at Oxford and Cambridge. However, law and
the law making process, particularly in the realm of civil law (torts and
contracts), remained to a large extent the domain of judges and barristers in
London. While some judges and barristers certainly did attend Oxford and
Cambridge Universities prior to coming to London to learn and practice law,
official legal education of barristers was confined to and conducted at the
Inns of Courts. Law students resided at one of these “inns” and their study day
consisted of reading case reports and visiting courts followed by dinners over
which the legal arguments presented in court and found in case reports that day
were evaluated, debated and discussed.
Therefore,
within this closed system, there was very little influence from either
university scholars at Oxford or Cambridge, or Parliament. Judges heard
disputes between parties and rendered decisions. Their decisions were based
upon the evidence that they heard in court and the reports of cases concerning
what other judges on the courts had heard and determined. In this way, in this
period of time, the system of precedent was further developed and refined.
Judges of the Common Law and Equity Courts determined their rules on the basis
of conscience and the reports of decisions rendered by judges in the past.
In
nineteenth century London, a barrister, prior to trial and representing his
client needed to read the statements of judges, found in law reports. It was
with these printed statements that the law was delineated and could be used by
the barrister to defend and define his client’s interests.
It
was only subsequent to the development of legal rules in many fields that
Parliament in England began to override the decisions of judges and introduce
new legal rules. Many of these new legal rules, statutes, were introduced to
ameliorate the worst abuses of the industrial revolution. For example,
according to the common law cases, work conditions were determined by contract
and this was a signed document created after bargaining was completed between
the employer and the employee. To protect children from unscrupulous factory
owners, Parliament changed judge-made law and enacted legislation overriding
freedom of contract between factory owners and children.
In
the story of the development of the courts in England and the reaction of
Parliament to abuses of industrialization one sees the use and interaction of
the two major sources of law in the Anglo-American world, statute law and case
law. Statutes were enacted when
Parliament believed that judge-made legal rules failed to protect individuals,
such as women or children, or failed to uphold national interests or standards.
[
Equity: canonischen Recht: rechtsprechung.. Equity mehr mit Romischem Recht..
verbunden… Commons Law und Equity.. Ecclessiastical
– very indirect
influence-
Zimmermann
has worked with this idea a lot…]
Today
one may argue that the court’s task is to apply the law and the legislator’s is
to make the law. However, this is a modern development and view in the United
Kingdom, Canada, and the United States and in any event, judicial
interpretation of statutes and judicial statements remain important
sources of law even today.
The
Germans have a very different legal development and therefore a very different
legal tradition. There are at least three major factors to consider.
First,
the Germans, like other continental Europeans, inherited a series of
sophisticated legal rules from the ancient Romans. Therefore, unlike the
English courts, which developed rules as they went along, the German courts had
a set of rules in place and it
became
the job of the German judge to apply the more sophisticated Roman rules to the
cases that arose in his court, which could not be solved by local German
custom. Like German scholars, English scholars too were heirs to the Roman
legal tradition. English scholars had traveled, like other European professors
of that time, to the great Italian law universities, Pisa and Bologna. The
English scholars, like the other Europeans, had been taught about the Justinian
Code. However, the principles of the Justinian Code, did not transmit from the
British Universities to the court system.
Second,
unlike his more independent English counterpart, the German judge was often
trained at and worked with the university scholar in the interpretation and
development of legal rules. When the German judge did not know how to solve a
case, he often sent the file to a university. This process was called
Aktenversendung. There, a university professor looked at Roman law and provided
a written legal answer based on his scholarship. In this way, the commentaries
of university scholars, which were often based on Roman sources, became decisive
in determining the legal rules applied in court cases.
Third
in the eighteenth and nineteenth centuries, Civil Law nations developed codes.
A code is another word for statute, or law made by the legislature. In France,
the Code Civil, and in Germany, the Burgerlichgesetzbuch, provided a complete
series of rules for most cases which the judge simply had to apply.
So
putting all of this together, German judges and lawyers of the early twentieth
century, unlike their English or American counterparts, obtained their training
in part at university. Therefore the influence of university professors upon
the legal system was greater. German judges also looked at the commentaries and
writings of university professors, rather than the opinions other judges, in
order to solve cases. As well, judges in Germany did not have to create legal
rules as they went along, like their British counterparts, because the legal
rules were all set out in one statute ahead of time, which incorporated the
best of German and Roman scholarship.
To
some extent, when comparing the Anglo-American judge with the German, the
English speaking judge appears much more independent of both the university
system and the legislature, than his German trained counterpart. The German
judge of the early twentieth century was considered a civil servant who was
there to apply the law, not make it.
Questions:
deductive reasoning, inductive reasoning
Common
law- cases.. focus on individual situations, civil law rules, focus no policies
for the … to some extent civil law may have a more collectivist approach in its
education procedure..
-Richter dienst- deutsche war immer Richter
-Amerikanischen Richt- war erst Rechtanwalt...
Bewustsein.. mit dem sie anfangen...
[1] Daniel J. Boorstin, The Americans: The National
Experience, New York: Vintage Books, 1965.
Boorstin writes on
page 35: “Centuries before, Plato had noticed how maritime commerce multiplies
laws. In modern times, the energetic societies have been the great inventors of
laws. The
Romans, the French, the English, all did their best legal work during their
periods of expansive imperial enterprise. We cannot be surprised then, that New
England now became lawgiver to the new American nation.”
[2] Bruce W. Frier, The
Rise of the Roman Jurists, Princeton, N.J.: Princeton University Press, 1985.
[3] Schulz was a professor of law at the universities
of Bonn and Berlin. When the Nazis came to power he took refuge in England and
there
published many books and articles on Roman law.
[4] Fritz Schulz, History of Roman Legal Science, Oxford England: Oxford University Press, 1967.
[6] Barry Nicholas, An
Introduction to Roman law, Oxford, England: Oxford
University Press, 1962 (reprinted 1992.), page 28.
[7] A
jurisconsult might be appointed as a Iudex in a particular case. A jurisconsult
might serve as a Praetor for one year.
[9] Discussion with
Thomas Rüfner,
Wissenschaftlicher Mitarbeiter, Department of Law, Rheinische
Friedrich-Wilhelms-Universität, Bonn, Germany. (14 November 2003). See also, Fritz Schulz, History
of Roman Legal Science, at page 54:
Faithful to the
pontifical tradition they [Jurisconsults] were not mere partisans, ready to
forward a client’s cause by any and
every available means, including falsehood, calumny, and emotional appeals, but
guardians and promoters of the law.”
2 For example, even the legal system of
Scotland is different. It does rely upon Roman law sources. There fore, although England and
Scotland both constitute parts of the same nation, the United Kingdom,
their law systems are different.
[11] For a short
discussion of this topic, students might read the following:
Jackson J.
Spielvogel, Western Civilization, (4th
edition), Belmont, CA.: Wadsworth/Thomson Leaning, 2000. Pages 600-604.
[12] For example, one may look in chapter 3
concerning the Weimar Republic at the inflation case. In that case, the code of law did not foresee
hyperinflation. The judges of the Reichsgericht (and other courts)
were forced to take action and through the mechanism of “interpretation”
they were able to provide some relief to those parties to a contract, who
had been most
adversely affected by hyperinflation.