LEGAL HISTORY EXAM REVISION
CHAPTER I (Codification):
- A codification is written by a government that exerts authority over its
subjects. A codification is exclusive in the sense that it is the only source of
law.
o The authority feature relates directly to the social contract introduced
by Rousseau. ‘Subordination of the individual to the government is
essential’
o An unwritten codification is IMPOSSIBLE
- Interpretation is what gives validity and meaning to both written and
unwritten laws.
- Montesquieu says a judge is ‘la bouche de la loi’, meaning a judge’s only
task is to deliver justice through an impartial standpoint.
- The LEGISLATOR can only issue laws but CANNOT provide explanations
of them. Emperor Justinian tried the opposite.
o Justinian tried authentic interpretation: Interpretation that is carried
out by the legislator.
- ‘Référé législatif’ example: Justinian ordered the judges to come to him
whenever the law required further explanation.
- A codification provides…
o Legal certainty of laws. Especially important for criminal law: ‘No
punishment without law’. This advanced the codification of penal law.
o Economic laws (e.g: EU today functions thanks to treaties and written
laws)
o National unity (Helped many continental states to come together and
unite to become a country)
- Have codifications hindered the development of the law?
o According to the book, no.
- THE JUDGE is the one who decides what is law both in common law
systems with no codification such as England, and continental countries with
written laws.
,CHAPTER II (Codification & natural law):
- The Declaration of Independence was based on the notion of ‘natural law’.
o These laws didn’t need no ratification because they are valid any way.
They are self-evident.
- Natural law exists alongside and above man-made law since the times of the
Greeks and the Romans
- Natural law exists ‘independent of any opinions’, had intrinsic rationality
- GAIUS said…
o All people use partially their own law and partially the law that is
common to all people. Ius civile, law for a nation. But laws that are
made with natural reasoning are law of all nations (ius gentium).
Romans used both.
- EPICURUS…
o Man must submit himself voluntarily to a higher authority to avoid
the state of ‘war against all’. No law is accepted unless it is coming
from that accepted authority.
o The Epicurean concept is formal in nature: The content of law IS
NOT important.
- STOICS…
o Completely against Epicurus’ ideas. The law couldn’t mean what an
authority describes it so. THE CONTENT IS IMPORTANT.
o Material approach. ‘Law is what is in its content in accordance with
human reasoning’.
o The Stoics would test the law against ratio. Romans never tested law
like Stoics did.
- The Roman jurists such as Papianus and Ulpian would find it unnecessary to
define in a law that a seller is bound to sell if the product is purchased. They
thought it was pretty ‘self-explanatory’. They would equate ‘natural law’
with ‘ius gentium’.
o But sometimes it was more difficult (page 35, slavery situation)
o After Justinian and his code (Corpus Juris Civilis), ALL laws
(including rational law) were codified. This distinction wasn’t
necessary from that point on.
- HUGO GROTIUS…
o The father of natural law
o He said ‘even if there were no God, natural law would still exist’.
2
, o He appreciates Justinian’s code thanks to its natural law qualities.
- ROUSSEAU…
o ‘The Social Contract’: All members of the society place themselves
and their property under the authority of the will of the society.
Individuals form a nation by giving up their natural freedom in
exchange of their civil freedom. Subjugation of individual will under
society’s will, la volonté générale.
o He thinks that judges should not make law.
o He also thinks that laws of a State should be unified and codified.
- ‘Vernunftrecht’: Purely rationalistic approach to law promoted by Grotius,
the German name is vernunfrecht.
o Roman law was obsolete according to many people when
Vernunfrecht was in rise.
- Natural law may regard codification as ‘useless’ since the laws are already
self-explanatory and independent.
- BECCARIA…
o Principle of legality (no punishment without law) resulted in a huge
desire to codify criminal law. Eventually, this influenced the
codification of civil laws.
3
, CHAPTER III (Codification & Roman law):
Imperium and EDICTS The king has the power to enact laws. Has
supreme authority.
Comitia and LEGES (LEX) The comitia has the power to make laws
democratically.
After Romulus came into power…
- The patrician class emerged. One hundred ‘paters’ were chosen to partake in
the senate.
After the king diminished…
- Two consuls, each with FULL IMPERIUM The complete legislative,
executive, and judicial power.
o INTERCESSIO: A consul can disagree & overrule the other consul if
he is unhappy with a decision.
- At the start of the republic, edicts were more important than leges. There
was a ‘social battle’ between the patricians and the plebians.
o The plebian tribunes gained the right to VETO after a strike, and this
frustrated the patricians.
o Another outburst: plebians demanded codification.
1. 3 patricians went to Greece to learn about their written law
system. After they returned, the two consuls were replaced by
a board of ten men. They held imperium. They wrote the laws
on 10 tables in the Forum.
The board changed the following year to (also two more
tables were added) and even some plebians were a part of
the new board. The judges were obliged to base decisions
on this codification, but… LARGE ABUSE OF
POWER
o The patricians DID NOT make the ‘interpretatio’
public. Plebians did not know on which grounds
they were judged.
GNAEUS FLAVIUS Published a book uncovering the legal uncertainties
caused by the secret interpretations.
4
CHAPTER I (Codification):
- A codification is written by a government that exerts authority over its
subjects. A codification is exclusive in the sense that it is the only source of
law.
o The authority feature relates directly to the social contract introduced
by Rousseau. ‘Subordination of the individual to the government is
essential’
o An unwritten codification is IMPOSSIBLE
- Interpretation is what gives validity and meaning to both written and
unwritten laws.
- Montesquieu says a judge is ‘la bouche de la loi’, meaning a judge’s only
task is to deliver justice through an impartial standpoint.
- The LEGISLATOR can only issue laws but CANNOT provide explanations
of them. Emperor Justinian tried the opposite.
o Justinian tried authentic interpretation: Interpretation that is carried
out by the legislator.
- ‘Référé législatif’ example: Justinian ordered the judges to come to him
whenever the law required further explanation.
- A codification provides…
o Legal certainty of laws. Especially important for criminal law: ‘No
punishment without law’. This advanced the codification of penal law.
o Economic laws (e.g: EU today functions thanks to treaties and written
laws)
o National unity (Helped many continental states to come together and
unite to become a country)
- Have codifications hindered the development of the law?
o According to the book, no.
- THE JUDGE is the one who decides what is law both in common law
systems with no codification such as England, and continental countries with
written laws.
,CHAPTER II (Codification & natural law):
- The Declaration of Independence was based on the notion of ‘natural law’.
o These laws didn’t need no ratification because they are valid any way.
They are self-evident.
- Natural law exists alongside and above man-made law since the times of the
Greeks and the Romans
- Natural law exists ‘independent of any opinions’, had intrinsic rationality
- GAIUS said…
o All people use partially their own law and partially the law that is
common to all people. Ius civile, law for a nation. But laws that are
made with natural reasoning are law of all nations (ius gentium).
Romans used both.
- EPICURUS…
o Man must submit himself voluntarily to a higher authority to avoid
the state of ‘war against all’. No law is accepted unless it is coming
from that accepted authority.
o The Epicurean concept is formal in nature: The content of law IS
NOT important.
- STOICS…
o Completely against Epicurus’ ideas. The law couldn’t mean what an
authority describes it so. THE CONTENT IS IMPORTANT.
o Material approach. ‘Law is what is in its content in accordance with
human reasoning’.
o The Stoics would test the law against ratio. Romans never tested law
like Stoics did.
- The Roman jurists such as Papianus and Ulpian would find it unnecessary to
define in a law that a seller is bound to sell if the product is purchased. They
thought it was pretty ‘self-explanatory’. They would equate ‘natural law’
with ‘ius gentium’.
o But sometimes it was more difficult (page 35, slavery situation)
o After Justinian and his code (Corpus Juris Civilis), ALL laws
(including rational law) were codified. This distinction wasn’t
necessary from that point on.
- HUGO GROTIUS…
o The father of natural law
o He said ‘even if there were no God, natural law would still exist’.
2
, o He appreciates Justinian’s code thanks to its natural law qualities.
- ROUSSEAU…
o ‘The Social Contract’: All members of the society place themselves
and their property under the authority of the will of the society.
Individuals form a nation by giving up their natural freedom in
exchange of their civil freedom. Subjugation of individual will under
society’s will, la volonté générale.
o He thinks that judges should not make law.
o He also thinks that laws of a State should be unified and codified.
- ‘Vernunftrecht’: Purely rationalistic approach to law promoted by Grotius,
the German name is vernunfrecht.
o Roman law was obsolete according to many people when
Vernunfrecht was in rise.
- Natural law may regard codification as ‘useless’ since the laws are already
self-explanatory and independent.
- BECCARIA…
o Principle of legality (no punishment without law) resulted in a huge
desire to codify criminal law. Eventually, this influenced the
codification of civil laws.
3
, CHAPTER III (Codification & Roman law):
Imperium and EDICTS The king has the power to enact laws. Has
supreme authority.
Comitia and LEGES (LEX) The comitia has the power to make laws
democratically.
After Romulus came into power…
- The patrician class emerged. One hundred ‘paters’ were chosen to partake in
the senate.
After the king diminished…
- Two consuls, each with FULL IMPERIUM The complete legislative,
executive, and judicial power.
o INTERCESSIO: A consul can disagree & overrule the other consul if
he is unhappy with a decision.
- At the start of the republic, edicts were more important than leges. There
was a ‘social battle’ between the patricians and the plebians.
o The plebian tribunes gained the right to VETO after a strike, and this
frustrated the patricians.
o Another outburst: plebians demanded codification.
1. 3 patricians went to Greece to learn about their written law
system. After they returned, the two consuls were replaced by
a board of ten men. They held imperium. They wrote the laws
on 10 tables in the Forum.
The board changed the following year to (also two more
tables were added) and even some plebians were a part of
the new board. The judges were obliged to base decisions
on this codification, but… LARGE ABUSE OF
POWER
o The patricians DID NOT make the ‘interpretatio’
public. Plebians did not know on which grounds
they were judged.
GNAEUS FLAVIUS Published a book uncovering the legal uncertainties
caused by the secret interpretations.
4
