CLH Topic 1 cont.Lecture 3

1. Roman roots cont.

Subsequent fate of the Corpus Iuris Civilis: very little impact in the East. See instead popularity of Greek-language summaries of the CJC, e.g. the Paraphrasis (summary of the Institutes in particular) and later the Basilica and Hexabiblos.

Cf the rise of the so-called barbarian codes in the West: e.g. the Lex Romana Visigothorum (Alarics Breviary)

2. Medieval reception

Glossators flourished at Pavia, Bologna etc from around 1100AD (the 12th century): Irnerius; the four doctors, Martinus, Hugolinus, Jacobus and Bulgarus; Johannes Bassianus; Azo. Finally, around the middle of the 13th century (i.e. twelve hundreds), Accursius.

Note complementary (and sometimes contradictory) system of Canon Law: doctores utriusque iuris

3. The ius commune and Roman Dutch law

Commentators (N Italy,14th-15th century): Bartolus de Sassoferrato; Baldus de Ubaldis. A more actively critical approach to the CJC, but still essentially concerned with commentary/exegesis on/of the Roman sources.

Cf French Humanists (France, 16th century): Donellus. Awareness of the social/historical/political context of Roman legal rules for the first time. Cf wider cultural trends within Europe, i.e. the Renaissance and Reformation.

Roman-Dutch legal scholarship (Holland/Netherlands,17th-18th century): The Hooge Raad; Grotius Introduction to the Roman Dutch Law and Law of War and Peace, Vinnius, Van Leewen, Groenewegen, Huber, Voet Commentarius Ad Pandectas.

4. The Pandectists and German Historical School

Thibault, Savigny, Jhering, Windscheid etc: an attempt to produce a systematic statement of Roman legal rules, in a sense continuing the work of Justinians Compilers.

These German 19th-century scholars hugely influential on all Western legal systems.

5. The codification movement

French Code Civil: 1804 still largely casuistic, intellectually unsophisticated.German Civil Code (BGB): 1900 highly comprehensive and systematic

Both codes exported around the world, the first due to Napoleons military successes, the second due to its innate intellectual value.

The older civil codes such as the French, Egyptian, and Austrian ones are structured according to the institutional system of the Gaius and generally have three large parts:

Law of Persons (personae) Law of Things (res) Issues common to both parts (actiones).

The newer codes such as the codes of Germany, Switzerland and Portugal are structured according to the Pandectist System:

General part Law of Obligations Law of Real Rights Family Law Law of Inheritance

Only the UK and the Scandinavian countries in Europe remain untouched by the codification movement.

6. The common-law tradition

An entirely different legal system, with its roots in Medieval writs (cf the formulae of ancient Roman law)

Law studied in the Inns of Court, not in universities (indeed, English law not studied at any English university before Blackstone began lecturing at Oxford in the late 18th century)

The common law, administered by the Kings Courts, vs Equity and the Courts of Chancery

The Judicature Acts of the 1870s brought an end to the formal Law/Equity split, but this division in the substantive law continues even today.

Another hallmark of the common law: law expounded by judges through the cases, rather than by law-makers through statute. Analogical reasoning vs deductive reasoning. Benthams attempts to introduce codification to England during the early 19th century unsuccessful. The rise of the doctrine of precedent during the second half of the 19th century.

English law exported to SA by English-trained judges during the 19th century it was grafted on to / combined with the Roman-Dutch legal rules to create what is now referred to as a mixed legal system cf Scotland.

7. Conclusion

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