Week 3 - Italy

codex florentinus

• digest (writing by roman jurists)

• contained a sophisticated legal system

• Irnerius

where was codex florentinus studied?

Bologna university

pragmatic sanction

• 554 AD

• after the gothic war (Ostogoths vs Italy)

• law codes introduced in italy (institutes, digest, code, novel)

Byzantine empire

• east roman empire

• southern italy was in byzantine empire until 1071

• northern italy was lost in 568 to Lombards

Which principle of applicable law did the roman empire use?

• territoriality principle

• roman citizenship for all inhabitants

• roman citizen meant roman law applied

Emperor Caracalla

• constitutio antoniana (212 AD)

• made everyone citizens in east roman empire

Which principle of applicable law did the Germanic tribes use?

• personality principle

• applicable law based on ethnicity

what is the problem with using personality principle?

• became complex when a person is of mixed descent

Professiones iuris

• declaration of applicable law

• majority of people in Italy are of roman descent

• superiority of roman law to tribal law

what replaced tribal laws?

local customary law

what is customary law

• Diuturus Usus = custom in use for a long time

• Opinio Juris = regarded as legally binding

If customary law is written down is it still customary law?

• yes

• by definition it would be customary law

• its validity does not depend on lawbooks

What caused legal diversity in europe

• development of customary law

• development of feudalism

• fall of the western roman empire in 476 AD

• no powerful central government

what did the bilateral contract between Liege Lord (landowner) and a Liegeman (the vassal) include?

• there was no central army, so people were no longer protected by the state

• landowner provided protection through a private army, a fortified residence, and granted the vassal a piece of land

• the vassal provided consilium et auxilium

consilium et auxilium

• refers to the aid provided by the vassal to the landlord

• auxilium (aid) = private military service

• consilium (advice) = vassal had to attend lord’s court to advise on political decisions

why did feudalism cause legal diversity

• each local lord had their own court

• each area had their own specific customs

fief

land or property

why were fiefs usually inherited by male descendants?

• because of the military service that needed to be provided to the landlord

• possibility of sib-fiefs and sub-vassals

sub-fief and sub-vassals

when vassal grants some of their land to his followers

allodium

free owned land without loans

nulle terre sons seineur

no property without liege lord

corpus iuris civilis

law codes of justinian

if you wished to be a lawyer you had to study..

1. Roman law because it was used throughout the entirety of europe

2. Local customary law

School of Glossators

• 1070 rediscovery of the digest

• glossa = annotation in the margin of the text

• glossators explained and summarized roman jurists writings

what is the problem with the school of glossators?

interpretation of the writing of the roman jurists in the digest can vary

glossa ordinaria

• 1230

• Accursius, professor in Uni of Bologna

• combined 100,000 of notes into Glossa ordinaria

what caused the power struggle between the pope and the emperor?

• Dictates of the Pope (Dictatus Papae)

• emperor Henry IV vs Pope Gregorius VII

Dictates of the Pope

• statements which claimed unprecedented powers for the pope

what kind of rights were given to the pope by Dictates of the Pope?

• roman pointiff alone can with right be called universal

• can alone depose or reinstate bishops

• can alone use imperial insignia

• may be permitted for pope to depose emperors

• may be permitted to transfer bishops if needed

• canon law above emperors law

why was roman law rediscovered?

• economic growth increased travel, which increased demand for roman law as it is the same everywhere

• problems with customary law (unwritten, usually unclear, varied per region)

What shifted roman law to the foundation of the modern western legal system?

• Codex Florentinus was rediscovered in italy

• created demand for people to read and explain it

canon law

• law of the catholic church

• separate from secular roman law or imperial law

where could you find canons?

• decretals

• ecclesiastical councils

• writings of church fathers

decretals

letters of the pope that formulate ecclesiastical law

ecclesiastical councils

meetings of bishops

decretium gratiani

• written in 1140 by monk named Gratian

• book comprises rules of canon law

• also contains Gratians commentary

what was the aim of decretium gratiani?

harmonize apparent contradictions in texts by means of interpretation

which had a glossa published first (Gratians decretium or Glossa ordinaria)?

• Gratian’s decretum

• glossa on Gratian’s decretum was published by Johannes Teutonicus in 1220

what did corpus iuris conocini consist of?

1. Decretum (1140)

2. Leber extra (1234)

3. Liber sextus

4. Clementines (1317)

5. Extravagantes (end of 15th century)

Decretum

• 1140

• gratians compilation of canon law

• no codification, but authoritative

Liber extra

• 1234

• Compilation of papal decretals in 5 books

• Ordered by pope Gregorius

• Codification

Liber sextus

• compilation of new papal

• ordered by pope Bonifacus VIII

• codification

Clementines

• 1317

• compilation of decretals by Clement V

Extravagantes

• 2 privately compiled

• end of 15th century

what was the influence of canon law on secular law?

• aequitas canonica = cononical equity

• introduced the concept of equity into law

• secular law always tested on basis of church’s equity

why was ecclesiastial law man made?

popes issued decretals

4th council of the lateran

• 1215

• meeting of church leaders

• issued decree that ended irrational legal systems of early middle ages

• ban on blood and ordeals = forbidding priests from participating in trials involving shedding of blood

what jurisdiction did canon law have outside of church matters?

• marriage law

• law of inheritance

what idea did canon law introduce to marriage law

• consensus

• marriage is only valid if both parties agree

what idea did canon law introduce to inheritance law

introduction of testament

what idea did canon law introduce to law of contracts?

• introduction of enforceability

• in roman law informal agreemnets without legal form are not enforeable in court (pacta nuda non servanda sunt)

• in canon law all agreements must be kept, therefore all contracts enforceable in court (pacta servanda sunt)

pacta nuda non servanda sunt

idea in roman law that informal agreements without legal form are not enforceable

pacta servanda sunt

idea in canon law that all agreements are enforceable in court

mos italicus

• italian way of interpretation

• interpreting corpus iuris civilis as living law = liberal interpretation

• relying on glossa ordinaria to apply to modern issues

Bartolus

introduced international roman law

solved important conflict = which legal system provides applicable law?