I. Every system of law organically grows from the soul of its society. A society’s soul is found in what is of central importance to that society. To apprehend the soul of a society, it is necessary to gaze into in its culture and to examine the social customs derived there from. Social custom is the matter from which law is formed into its distinct existence.
Thus, law reflects the society’s elemental ideas of justice and fairness. Law enforces and upholds a social contract among members of a given society. Moreover, law forms the members of a given society by inculcating the values a society holds dear. Therefore, law plays a powerful role in shaping, at a foundational level, the essential character of both the individual citizen, and the particular society.
To illustrate, consider that in every European language except English the notion of “right” is also con-notated in the word “law.” For example, the root of many words related to law is the Latin Ius (iurus) which has three equivocal meanings: 1. law (i.e., statutory law); 2.a right; 3. the entire legal system, while the Latin word for law itself is Lex (legis). In non-Anglo cultures, rights and obligations go hand-in-hand. But “right” is not con-notated in the English word “law.” It is therefore understandable that the Anglo-American legal tradition has emphasized obligation without much reference to right. Nonetheless, Anglo-American law has developed a vocabulary of rights over the course of the last three centuries.
Prior to John Austin (1790-1856), legal systems were conceived of in terms of a hierarchy which included kinds of law distinct from positive law made by organs of the state. Types of law within in this conception included the law of God as found in Divine Revelation, Natural Law (Ius Naturale), or laws derived from the human nature of people, custom, or law derived from human activity and experience of people, human positive law legislated by human authority vested in government, and the Ius Gentium, or the law of nations (“peoples”) which cannot be legislated by government authority, unless there is a world government.
John Austin, in The Province of Jurisprudence Determined (1832), asked basic questions such as What should law be? Where should law come from? What should the relationship be between transcendental norms and other laws outside the positive law of the sovereign state? In short, Austin’s answer stands for the proposition that all law only properly comes from the organs of the state, and that the state should be the exclusive repository and producer of all law. Under Austin’s account, the positive law of the territorial state is the supreme and only law that is enforceable within that state. The theory of law proposed by John Austin, Positive Law (Ius Positivum), is a concept of law whereby law is established and ordained exclusively by and within the territorial state.
Austin holds that legal systems should be stripped of everything except positive law produced by organs of the territorial state. Consequently, transcendental norms and laws are banned from law because they are outside the purview of state-made law. With Austin, the legal system of the territorial state becomes supreme and cannot be violated by any other law.
Austin’s idea of centralizing all lawmaking power in the sovereign territorial state was not unique with him, but his writings embody the spirit of the age in which he lived. Austin’s approach reflects a more philosophical approach to law rather than a jurisprudential approach. Jurisprudence grows out of an existing concrete legal system, while philosophy of law is abstract and not as narrowly connected to a concrete legal system. Jurisprudence is founded on concrete law, but philosophy of law asks what law ought to be like normatively and descriptively in the abstract. These were the type of questions Austin was asking. Austin attempts to discard the normative aspects of law and to simply treat law as a speculative science by giving it a descriptive “scientific” account, i.e., the anatomy of what law “is,” not necessarily what law “ought” to be in the normative sense.
Austin’s legacy to the modern world is the notion of the territorial nation state which is sometimes called Austinian Sovereignty or Absolute Sovereignty. The Modern Territorial State has absolute sovereignty over its governing legal system. This fact radically diminishes the importance of all other sources of law.
II. Up until 1850, customary law was an extremely important source of law in legal systems. Customary law is the indigenous law of peoples within localities, as opposed to the “learned” Roman and Canon law of the Universities and Law Schools. Perhaps the most renown example of customary law still in force is the Common Law, which was the law common to the Kingdoms of the British Isles. Before custom was written down, it was passed down as oral law. Oral law, by its very nature, will be inconsistent and vary from region to region in the same way that a particular folksong will vary from region to region. Once custom is written down, it is possible to speak of law as a unity and a unifying force because there is a record of law independent of a human agent.
Immemorial custom, beyond the memory of human beings, could not easily be changed because it had become good law by the test of time and the experience of generations. Yet, somewhat paradoxically, if customary law remains a lived oral tradition, it is more readily adaptable than if it is written down. Once custom is written down, it no longer retains the same degree of adaptability because it “freezes” the law in a text, and therefore in time. Written custom may effect a certain degree of certainty, but it makes any modification to the written law difficult.
The endurance of custom suggests that it to some degree reflects the qualities of human nature, and the nature of reality. Custom further suggests the idea that law should not change, an idea deeply embedded in the human psyche. Human beings tend to be attached to custom.
Prior to the notion of Austinian Sovereignty, custom had significant weight as law. Contrast custom, derived from the activity and practical experience of human beings on the micro level, with the more Austinian sense of law as “that which is laid down, ordained, or established” by a centralized authority on the macro level. Unlike state-produced positive law, where all law is produced by the organs of the territorial state, the state does not have power or control over custom. Custom therefore represents a danger to a modern state-controlled legal system.
Codifications in modern legal systems generally reflect the Austinian model of sole sovereignty over legal systems invested in a centralized state government. Such centralized authority diminished the threat of customary law to the power of the state. When comparing Civil Law with Common Law, it is interesting to note that Civil Law has adopted Austinian sovereignty to a much greater extent than has the Common Law tradition. To control the customary law of peoples, the Civil Law governments of modern nation states adopted comprehensive positive law codes that cover all aspects of law. Such codes supercede all prior sources and forms of law by replacing the former variety of legal sources with a single centralized legal authority under the power of the state.
While Anglo-American Common law lacks such a comprehensive code, it employs stare decisis (“let the decision stand”), i.e., it uses precedent as a source of authority. Stare decisis does not technically violate Austinian sovereignty, but stare decisis is nonetheless not centralized and seeks to provide legal authority and legal stability – and control over customary law.
Historically, codes are the result of some kind of social unrest. Modern codifications had their genesis in the wake of the Age of Revolution, where legal order was desperately needed to fill the vacuum created by the destruction of the acien regime. Codes are basically written customary law. Authors of codes may have two purposes in compiling a code: (1) to collect and systematically reformulate law currently in force with the intent to conserve the status quo, or (2) to instigate radical social reform by supplanting all prior sources of law with a solitary “new system.”
Modern Civil Law nation state codes that arose in the late 18th-century, unlike other prior codifications, which merely sought to organize and conserve laws already in force, had the intent of reforming the ancien regime, albeit in a somewhat conservative fashion. The modern codifications sought to establish ‘definitive’ codes that would provide a solution for all possible cases. The new codes were ‘definitive’ by virtue of the fact that they were held out to be crystal clear and self-sufficient, and thus were in no need of extraneous sources of law.
Any law or legal principle outside the official code at variance with a law in the code is per se invalid. Codified law therefore has a certain stacis – i.e., it secures certainty. By putting custom in codified form under the control of a centralized sovereign, nation states seek to safeguard society and to ensure legal certainty, i.e., the stability of the social order. Civil law values legal certainty to an even greater degree than Common Law and has consequently consciously rejected the idea of stare decisis. Many Civil law jurists express dissatisfaction with the inflexibility of the Civil law tradition in adapting to changing circumstances. These critics argue that codes “freeze” a culture’s legal development at one particular point in time and thus stifle any further legal, and consequently social development necessary to adapt to new or altered circumstances. Such a code, critics say, will eventually lose any correspondence with the reality of the culture from which the original code sprang and simply become unmanageable.
A written and published code also has the effect of providing the procedural due process of notice and promulgation to people. Codified law strives for clarity by communicating the law in terms lay people can understand, ostensibly providing greater procedural due process to those in Civil Law countries. In the early days of Rome, knowledge of the law was mysteriously held by a priestly caste who knew the substance of law. Indeed, law was discerned by an elite body of priests with whom the law was also stored and maintained. This gave law the appearance of mystery to the common people. Written procedure made the law known to the common people. Procedure is the most important single thing that the common person needs to know – if a person has been wronged, the first thing such a person would need to know is what is necessary to qualify for a remedy. This explains why the content of the earliest codes place a heavy emphasis on procedure.
Finally, a further distinctive feature of these modern codifications is that they enshrined a preeminent Enlightenment principle by holding all citizens equal before the law of the state. Codifications form the centerpiece of each respective European nation state.
III.Jurists had singular importance in Roman Law. In Roman Law, private Jurists made and adapted law. Moreover, Roman Jurists were the most important vehicle for legal change in Roman law. Roman Jurists were not necessarily part of the state, although they could be (e.g., magistrates). Jurists were in x-large part private citizens who wrote about law and advised people about law. Moreover, even though they were mainly private citizens, Roman Jurists were also an important source of law. Changes in Roman law did not come about through statutory enactments, but rather through the actions of private Jurists. The Jurists had the power to broaden the laws’ applicability through judicial interpretation. This judicial interpretation of Roman law was the very life blood of Roman law, it is the way in which Roman law changed and adapted for nine centuries.
Roman Jurists were essential to balance the tension between change and certainty in law. For example, in an almost unique feat, the Lex Aquilia was valid Roman law from the 3rd century BC until the 6th century A.D. The Lex Aquilia, the Roman law of torts or delicts, concerned the damage and destruction of property (slaves and cattle, investments). This law underscored the importance of property rights in Roman law. Roman law, like all law, is not absolutely logical. Nevertheless, Jurists, through their interpretations of the Lex Aqilia, were able to cover almost every case that arose under the statute.
To illustrate: an excerpt from the 3rd Chapter of the Lex Aquilia reads, in the Pennington translation, “In the case of all other things apart from slaves or cattle that have been killed, if anyone does damage to another by wrongfully (iniuria) burning, breaking, or spoiling (userit, fregerit, ruperit), let him be condemned to pay the owner whatever the damage shall prove to be worth in the next thirty days.”
Here, the word ruperit means “to break or rend asunder.” But Roman Jurists, at some point in time after the Lex Aquilia was promulgated, made a judicial interpretation that ruperit effectively meant corruperit, or “spoiled” rather than simply “breaking” again. In this way, Roman Jurists extended the application of the Lex Aquilia to include perishable crops, such as grain.
In another instance, Roman Jurists interpreted the following excerpt from the 1st Chapter of the Lex Aquilia in a most remarkable way. The passage under consideration reads: “If anyone kills unlawfully (iniuria) a slave or servant-girl belonging to someone else, or a four-footed beast of the class of cattle, let him be condemned to pay the owner the highest value that the property had attained during the preceding year.”
Of paramount importance here is to bear in mind that the Lex Aquilia pertains to property damage. Nonetheless, in the 2nd-century A.D., the Roman Jurist Julian interprets the Lex Aquilia to cover personal injury to a free-born boy – extending a property concept to personal injury for non-slaves. Up until the 2nd-century A.D., it was uncertain how Roman Law treated personal injury. Julian accomplished this by interpreting iniuria, meaning unlawful insult and damage, in such a way to construe injury to a free-born boy as an affront to the family from which the boy comes. Romans were very conscious of family honor. The intentional injury of a boy could be seen as an insult to the reputation of the head-of-household, or paterfamilias. Thus the Roman Jurists achieved an extraordinary expansion of the Lex Aquilia to cover not only property damages, but personal injury to people as well.
The Emperor Justinian assumed power in 527 A.D. Justinian desired an absolutely certain legal system. In 529 A.D., he sought to “Freeze” the law in place through codification in an effort to achieve absolute certainty.
Two significant factors contributed to the ultimate failure, as a practical matter, of Justinian’s codification. First, the text of Corpus Iurus Civilis, was in Latin. Constantinople, the seat of Justinian’s power, was in the eastern Mediterranean, in the heart of Greek Culture. Few people there read or spoke Latin, making the Code difficult to access. Second, up until the time of Justinian, Roman law flourished through legal change accomplished by the careful balancing of the natural tension between change and certainty - achieved in x-large part through the agency of the Roman Jurists. But to further secure certainty, Justinian insisted that no one could write commentaries his codification, titled the Corpus Iurus Civilis. This stricture forbidding commentary contributed to the ultimate failure of Justinian’s attempt to exert more control over the law by undermining the mechanism by which Roman Law was allowed to adapt to changing circumstances, to “breathe” as it were. By 600 A.D., the Corpus Iurus Civilis was dead law. Nevertheless, Justinian’s Code retained some force in the Byzantine Empire. Despite his efforts to prohibit commentaries on the Code, such commentary was written by teachers and other scholars. Justinian’s failed attempt to rigidly codify Roman Law demonstrates that Roman Law’s flourishing depended on the fact that it was not codified in the way Justinian had conceived – indeed, in the way modern Civil Law systems are codified today.
IV. Germanic Law has several significant characteristics that influenced later European legal systems. Unlike the early law of the Romans, which was secretly held by a mysterious priestly class, Germanic law was considerably more “transparent” in that its proceedings were held in public, open space in front of the affected community. This is an aspect that seems to have survived in the Common Law system
Another distinct characteristic of Germanic law that has left is mark on the Common Law system is an adversarial procedural system: The Ordeal. Every society with a known history has evolved from an ordeal system as the primary mode of proof, whereby judgment is left to God through various natural elements, to a procedure system whereby men judge other men.
In the Germanic Ordeal human beings invoked God to pass judgment. Common ordeals included trial by water, battle, and hot iron. Ordeals served the purpose of relieving human beings of the responsibility to judge other human beings by creating an institution that allows God, or nature, to judge other human beings. Moreover, since God does not make mistakes, the Ordeal system allows human beings an element of deniability. The adversarial aspect of the Ordeal was retained in the Common Law system of procedure.
Yet another influential characteristic is the essential importance of the oath procedure, i.e., the swearing of an oath that you did not do something, or having someone else swearing an oath that you did not do something to exonerate you – somewhat like a character witness. One particular form of oath was the Compurgation, whereby the accused would take a formulaic oath and would have to repeat the oath verbatim without stumbling. Additionally, the accused would have to get other people to say the oath without stumbling. If the oath takers/makers stumbled in the saying of the oath, the accused would lose. Although somewhat diminished in recent times, the historical importance of the oath within modern legal systems is in some part traceable to its origin in Germanic customary law.
An additional distinct, though less influential characteristic, is the notion that law is personal, not territorial. The idea that law is personal is found widely in diverse cultures around the world. In this way of thinking, law attaches to the person, not territory. Germanic tribes would not have thought it fair, equitable, or just to apply German law to non-Germans, even if they conquered non-German peoples. Thus, German conquerors had to learn the laws of the various peoples they conquered in order to govern them. This notion allowed a multiplicity of customary codes in kingdoms and principalities. This idea seems not to have survived in any directly traceable way in modern legal systems.
Finally, German customary codes provided that every crime has a price, and there is no capital punishment (Ordeals were a procedural device to determine guilt or innocence, not punishment). This appears to be where, at least in part, the modern legal system acquired its notion of making the injured person whole through the payment of damages.
V. In 1075, written notice was given that a person named Pepo, in Bologna, began teaching Justinian’s Digest. This was remarkable because there was no evidence that Justinian’s Digest was used in Constantinople after 600 A.D. Indeed, there was no evidence that Justinian’s Code had been actively considered in Western Europe from 600 A.D to 1075. Up until this time, Roman Law was essentially a dead legal system. The thread connecting the ages is likely the Codex Florentinus, which in 1075 was at Pisa and is today in Florence. This is the source Pepo used to teach Roman Law.
Students began to flock to Bologna to study Roman Law from all over Europe in response to Pepo’s announced course offerings. Such students were likely reacting to economic (increased commerce) and demographic (increased urbanization) growth that stimulated renewed interest in Roman Law. Roman Law was the most sophisticated form of law in Europe, easily surpassing the customary laws of Europe. The revival of Roman Law facilitated the introduction of more sophisticated legal techniques into the respective customary laws of Western Europe. With the advent of increased commercial trade, commercial law, i.e., contracts, torts, etc. – the subject matter of the Lex Aquilia, was needed to regulate commercial transactions.
Justinian’s Digest contained the jurisprudence of Roman Law. Pepo likely saw Justinian’s Digest as a means by which to engage the new economic and demographic trends in late-Medieval Europe. Pepo taught students about the way in which the Roman legal system could be used to consider the challenges of these new trends, offering a more sophisticated approach than the one offered by the Germanic Codes and local customary law concerning the issues surrounding, for example, commercial trade.
As a result of the tradition of legal scholarship begun by Pepo, Bologna became the most important law school in Europe, and remained so until the 16th-century (from the 12th to the 16th century). The success in Bologna inspired the creation of new institutions of higher learning, generating new law schools - and the first universities in all of Europe. All universities that taught law, taught Roman Law through the works of Justinian and Medieval commentators like Pepo and his scholarly progeny.
By 1140, the monk Gratian tried to do for canon law what Justinian did for Roman law. Gratian compiled a code of canon law similar to other private collections of civil law from a multiplicity of Canon Law sources including the Bible, Church councils documents, statements of the Church Fathers, Papal decisions, along with excerpts from Roman Law. With the growth of papal power that occurred from 1150-1225, Papal legislation became a particular focus of law. The growth of papal power facilitated other developments including the centralization of the Roman Catholic Church, and the development of a hierarchical court system. While Gratian recognized the importance of contemporary papal legislation or Decretals, he thought of law not in the narrow terms of Papal Decretals but rather in the terms of law through the lens of the past - in terms of customary law. Gratian’s scholarship came to fruition in his magisterial work on Canon Law, Concordantia discordantium canonum, or “a concord of discordant canons.” This work ultimately became known as Gratian’s Decretum.
Subsequent scholarship on Roman Law after Pepo conducted by such Jurists as Irnerius, the “Four Doctors of Roman Law,” Jacobus, Martinus, Bulgarus, and Hugo, and
Azo culminated in a “gloss” on the Corpus Iurus Civilis by the jurist Accursius. A gloss was a kind of commentary written along the boarders in the margins of the text of the law. In Roman Law, Accursus’ commentary, or gloss, on Justinian’s Digest became an influential standard work. Gratian’s Decretum, became the standard work for the study of Canon Law and is in effect a comprehensive code of Canon Law.
Scholars who “glossed” on legal works were called “glossators.” Glossators on both Roman Law and Canon Law bore some resemblance to the ancient Roman Jurists in that there work was a crucial mechanism in interpreting the law, thereby ensuring that the law did not become brittle, but that it was adapting the changing social trends and circumstances of the late-Middle Ages. Moreover, the glossator’s interpretations were given significant weight as authority. Medieval glossators moved, not altogether gradually, from merely defining certain legal terms of art, to giving legal interpretations of small passages, to full-fledged, comprehensive commentaries, or glosses, rendering a total interpretation of the law with cross-references. The importance of the scholarship of the Medieval glossator’s can be partially summed up in the following quote on page 49 of Peter Stein’s Roman Law in European History “The authority of the Gloss is the origin of the idea, still characteristic of the continental civil law, that authoritative academic comment on a legal text is itself an authentic source of law.” This quote again shows the similarity between the importance of the role of Roman Jurist in ancient Rome, and the importance of the Medieval Glossator during the Middle Ages.
The renewed interest in Roman Law and Canon Law scholarship was the genesis of the Ius Commune. The Ius Commune first consisted of Roman Law, with the subsequent addition of Canon Law. Roman Law became the foundation of the Western legal system, while Canon Law was the law of the Church. The two laws of the Ius Commune were instrumental in creating Western ideas about Law and had its period of most influence from the 12th to the 17th centuries, although its influence is still resonant in the modern Civil Law system.
VI. Gratian worked on his Decretum over many years (1150-1170). When conducting his scholarship, Gratian asked himself such elemental questions as What is law? and Where does law come from? Gratian asked these questions with an eye to establishing an order to the multiple sources of law available to him. While Roman law did not have a hierarchy, Gratian established one in his account: (from most supreme to least supreme) DIVINE LAW; NATURAL LAW; IUS GENTIUM (custom of peoples); POSITIVE LAW (human law); and CUSTOM.
The type of hierarchy outlined by Gratian hasx-large ly been destroyed by legal developments in the 19th-century. Today, U.S law has a much impoverished hierarchy merely within one of Gratian’s categories - positive law to the exclusion of virtually all other sources, with the possible exception of some judicial norms that lie outside the bounds of positive law such as custom and tradition. So, for example, the hierarchy of law most law students learn in law school – (from most supreme to least supreme) Constitutional Law, Statutory Law, Administrative Law and Common Law – are merely sub-species of what Gratian would characterize as positive law, or human, man-made law.
VII.Systems of procedure reveal a culture’s conception of justice and fairness. This is true of the Ordeal or a system of proof based on testimony, written evidence – or any other mode of proof distinct from the Ordeal. Indeed, every procedural system develops with its respective culture - it is not invented in an instant by a King or a legislature. In 1215, in the 4th Lateran Council, clerical participation in the ordeal was banned. As a consequence of this action, one of the biggest challenges presented to those who sought to revive Roman law during the 12th-century was to glean new procedural norms from the writings of Justinian and the other Jurists. What made this particularly challenging was that in Roman law, procedure was a part of civil law.
Medieval Jurists, however, were not confined exclusively to Roman Law as a viable source of law. The Bible was a living source of jurisprudence for the Ius Commune as well. For the Medieval Jurists, Biblical content constituted an important source of Natural Law. Legal tradition and religious tradition informed each other starting with the story of Adam and Eve in Genesis Chapter 3. The Jurists of the 12th-century looked at this story with fresh eyes to discern Divine Truth embedded in the Bible that had relevance for their society. The Bible has been a powerful source, indeed a radical source, of social reform throughout the ages. Perhaps it is the case that the Bible contains numerous truths about society that only become available when the particular society is ready to receive them.
In any event, Medieval Jurists discerned procedural due process norms embedded in the story of Adam and Eve. Here, the Jurists found in the interactions between God, Adam, and Eve such due process rights as, among others, the right to be heard, and the significance of an admission of guilt followed by an affirmative Defense (“it’s not my fault”). Since God had established these procedural due process rights in Gen. 3, the Medieval Jurists reasoned, the basis of these rights was not merely civil law, but Natural Law. This was significant because the Pope may only derogate natural law, not abrogate natural law. These developments firmly established that the rights of due process are founded on Natural Law. These new Natural Law based procedural norms become known as the ordo iudiciarius.
After the development of the ordo judiciarius the Pope became the highest level of judicial review. Church courts were separate from secular courts from the late 11th-century onward as a result of the new notion of separation of Church and State. Indeed, ecclesiastical courts were the only universal court system in Europe. Moreover, because the ordo iudiciarius was not embedded in the local courts and communities, it presented a serious challenge to local custom and the village authorities. While the continent ultimately adopted the ordo judiciarius, the British Isles adopted the jury trial system.
It is known that Church Courts were using the new procedure through Papal letters. Papal decisions, called decretals, were case law helpful to local courts in making decisions. Papal Decretals were essentially appealed cases whose existence illustrates the point that Stare Decisis was a part of the Ius Commune through Papal decretals. These collected decisions were viewed as valid law in all of Christendom and were therefore studied in law schools.
Interestingly, Papal decretals were collected privately. It was not until 1225 that Honorius III had the Church take control over the decretals. At this point, the official church took direct control over its own law. Decretals were compiled in a collection titled Compilatio Quinta. Fredrick the Second was the first secular ruler to produce a code of law including procedural norms, for his territories.