Comparative Foundations of Modern Law:

Mid-Term Essay

 Due: March 18, 2002.

1. The  Random House Webster's College Dictionary defines law as "the principles and regulations established by a government." Discuss the definitions of law:  How do our definitions of law affect our understanding of law?  How did John Austin's conception of law shape modern legal systems?

2. Define customary law.  Describe the main characteristics of codifications of customary law.  What type of codifications are they?  What is the difference between unwritten and written customary law?  In your analysis of customary law, be sure to focus on the issues of certainty and legal change, procedure, legislation, and the sources of law.  
 

3. Customary law existed in a period that was an "Age without Jurists."  Jurists take the stage for the first time in ancient Rome.  What was their role?  How did they influence the development of Roman law?   Discuss the ways in which the jurists brought about change while preserving certainty (use the development of tort law in the Lex Aquilia). Illustrate your points with examples from Justinian's Digest.   How successful was Justinian's attempt to establish certainty in Roman law? Was Roman law, like modern civil law systems, a system based on codification?

4.  What were the main characteristics of Germanic customary law?  What are the traces of Germanic law that can be found in modern legal systems?

5.  Discuss the revival of law in the twelfth century and the beginnings of the Ius commune.  Compare the role of jurists in Roman law with those who worked in the first two centuries of the Ius commune.

6. Gratian defined law at the beginning of his Decretum and introduced the idea that there was a hierarchy of laws.  Compare the hierarchy of laws in our legal system to Gratian's.

7. Procedure is the heart and soul of every legal system.  It defines a society's sense of fairness and justice (Pennington's theme song!).  Describe the evolution of procedural norms in the Ius commune from 1100 to 1350.
 

Write an essay covering each of these points. It should be typed, double-spaced, and proofread. The font should be 12 point, the margins 1" left and right, top and bottom. Please number pages (in case of an accident!).  Insert the number of each question in your essay when you being to discuss that part (so I am clear where you are).

I will evaluate your essay on how well you integrate the material on the web and the class lectures with the readings (for this essay Bellomo chapters 2, 3, 5, 6,  Stein Introduction, chapters 1 and 2, Van Caenegem, p. 1-109, and Justinian's Digest, Introduction and texts on the class web page).  The main point to remember when writing this essay is that none of the questions has any "hidden" or "trick" elements to them.  I want you to write an analytic, thoughtful essay on the material presented in the course.  For that reason, if you have any questions about exactly what I want you to write about in the essay, please ask.  I'll tell you!

You can submit your paper by email (I would prefer that you do).  It should be a DOS document in Word or WordPerfect.  If you are a Mac person and if you know that I cannot read your files, please submit a paper copy of your essay to me.  I shall be reading my email from March 5th to March 17th while I'm in Italy.  If you have questions, send me an email to my pennington@cua.edu address (I will not have access to my other account).