Western Legal Theory

What was distinctive about Greek political organization? (Ancient Greece)

Greece consisted of independent city-states (poleis) rather than one unified state.

What was the Age of the Lawgivers? (Archaic Greece)

The 7th–6th centuries BC, associated with lawgivers such as Draco, Solon, and Lycurgus.

What changed during the Age of the Lawgivers? (Archaic Greece)

Unwritten customary law was increasingly replaced by written statutory law.

What does nomos mean? (Ancient Greece)

Written statutory law that is generally binding.

Why was writing laws important? (Archaic Greece)

Laws became more knowable and accessible, reducing the ability of privileged families to control legal knowledge.

What was the Code of Gortyn? (Ancient Greece)

An almost complete Greek legal text from around 450 BC, found on Crete.

What are the two main conceptions of law in Greek thought? (Ancient Greece)

Natural law

What is natural law? (Ancient Greece)

Law based on a higher or natural standard that is not dependent on human enactment.

What is conventional law? (Ancient Greece)

Law created by human agreement or custom and therefore potentially different between societies.

How does Antigone illustrate natural law? (Ancient Greece)

Antigone argues that divine or unwritten laws have authority over conflicting human laws.

What did the Sophists argue about law? (Ancient Greece)

Law is largely conventional and relative because laws and customs differ between societies.

What example did Herodotus use to illustrate conventional law? (Ancient Greece)

Different cultures have radically different funeral practices, showing that customs vary between societies.

What distinction did Aristotle make between natural and conventional law? (Ancient Greece)

Some rules are natural and universally valid

What is distributive justice? (Aristotle

Ancient Greece)

What principle guides distributive justice? (Aristotle

Ancient Greece)

What is corrective justice? (Aristotle

Ancient Greece)

What principle guides corrective justice? (Aristotle

Ancient Greece)

What was Aristotle's position on natural slavery? (Aristotle

Ancient Greece)

What is the distinction between natural and conventional slavery? (Aristotle

Ancient Greece)

What problem does Aristotle's theory of slavery create? (Aristotle

Ancient Greece)

What were the main periods of Roman government? (Ancient Rome)

Monarchy: 753–509 BC

What was the Classical period of Roman law? (Ancient Rome)

Approximately 100 BC–250 AD.

Who primarily developed Roman law during the Classical period? (Ancient Rome)

Roman jurists (iuris consulti).

What were Roman jurists? (Ancient Rome)

Highly respected private legal experts who gave legal advice (responsa).

Why were Roman jurists important? (Ancient Rome)

Their legal opinions became an important source of Roman law and were later collected in Justinian's Digest.

Who was Gaius? (Ancient Rome)

A Roman jurist famous for his Institutes, an influential introductory textbook of Roman law.

What was the basic method of Roman jurists? (Ancient Rome)

Solving cases by making legally relevant distinctions.

What influenced the Roman jurists' method? (Ancient Rome)

The Greek dialectical method, particularly Aristotle.

What is the dialectical method? (Ancient Greece/Rome)

Organizing material through division and subdivision to create increasingly specific legal distinctions.

What is ius naturale? (Ancient Rome)

Natural law.

What did Cicero argue about natural law? (Ancient Rome)

Natural law is universal, rational, and independent of official recognition.

What is ius civile? (Ancient Rome)

Law specifically applicable to Roman citizens.

What is ius gentium? (Ancient Rome)

The law of peoples, particularly applicable to relations involving foreigners.

How does natural law relate to ius gentium? (Ancient Rome)

Ius gentium could contain rules inconsistent with natural law

What Roman institution conflicted with natural law? (Ancient Rome)

Slavery, because natural law held that human beings are naturally free.

What is manumission? (Ancient Rome)

The legal freeing of a slave.

What is the Roman conception of the rule of law? (Ancient Rome)

It was linked to the independence of jurists as guardians of law and the idea that rulers and citizens should obey law.

What did Cicero say about law and freedom? (Ancient Rome)

Obeying the law makes people free because freedom exists within a lawful political order.

What changed under the Roman Empire? (Ancient Rome)

The idea increasingly emerged that the emperor was above the laws.

What does princeps legibus solutus est mean? (Ancient Rome)

The emperor is not bound by statutes or laws.

What tension exists in Roman legal theory concerning equality? (Ancient Rome)

There is a gap between theoretical equality and the status-based inequalities of Roman law.

Who was Justinian? (Late Antiquity

Eastern Roman Empire)

What did Justinian do to Roman law? (Late Antiquity)

He ordered the compilation and codification of Roman legal materials into the Corpus iuris civilis.

When was the Corpus iuris civilis compiled? (Late Antiquity)

Approximately 529–533 AD.

What are the three major parts of the Corpus iuris civilis? (Late Antiquity)

Codex

What is the Codex? (Justinian

Late Antiquity)

What is the Digest? (Justinian

Late Antiquity)

What are the Institutes? (Justinian

Late Antiquity)

Why is the Digest particularly important? (Justinian

Late Antiquity)

When were the Early Middle Ages? (Early Middle Ages)

Approximately 500–1100 AD.

What happened in 312 AD? (Early Middle Ages)

Constantine converted to Christianity, beginning the transformation of Rome into a Christian empire.

What happened in 395 AD? (Late Antiquity)

The Roman Empire was divided into Eastern and Western Empires.

What happened in 476 AD? (Early Middle Ages)

The Western Roman Empire fell.

Who ruled much of Western Europe after 476? (Early Middle Ages)

Germanic kings, including Goths, Lombards, and Franks.

What happened to Roman law after the fall of the Western Roman Empire? (Early Middle Ages)

It survived in some areas but Western Europe became dominated by customary and feudal law.

What is feudalism? (Early Middle Ages)

A political and social system based on mutual obligations between kings, lords, and vassals, often involving land and protection.

What happened under Charlemagne? (Early Middle Ages)

Charlemagne consolidated much of Western Europe and revived the idea of the Roman Empire.

When was Charlemagne crowned emperor? (Early Middle Ages)

800 AD.

What is translatio imperii? (Early Middle Ages)

The idea of the transfer or continuation of imperial power, particularly the belief that Roman imperial authority had been transferred to medieval rulers.

What was the Holy Roman Empire? (Middle Ages)

A political entity claiming continuity with the Roman Empire, traditionally beginning with Otto I's imperial coronation in 962.

What were the two medieval theories of political power? (Early Middle Ages)

Descending theory

What is the descending theory of political power? (Early Middle Ages)

Political authority descends from God through rulers.

What is the ascending theory of political power? (Early Middle Ages)

Political authority ultimately originates from the people.

What was the Germanic conception of law? (Early Middle Ages)

Law consisted largely of the inherited customs of the people.

Could medieval kings freely create new law? (Early Middle Ages)

Traditionally no

What was the medieval conception of the rule of law? (Early Middle Ages)

The king was expected to govern within the limits of inherited law and custom.

What is the contract of government? (Early Middle Ages)

The idea that royal authority rests on a mutual agreement between ruler and subjects.

What influenced the contract-of-government idea? (Early Middle Ages)

Feudal relationships and coronation oaths created reciprocal obligations.

What was the Investiture Conflict? (High Middle Ages)

A struggle between pope and emperor over political and ecclesiastical authority.

What political idea emerged from the Investiture Conflict? (High Middle Ages)

The possibility of a right of resistance when a ruler violates the political or religious contract.

How did Christianity affect natural-law theory? (Early Middle Ages)

Natural law became increasingly understood as connected to divine law and Christian morality.

What did Gratian argue about natural law? (Medieval Canon Law)

A custom or written rule contrary to natural law is legally invalid.

What did Christianity contribute to ideas of equality? (Medieval Christianity)

The idea that all human beings are fundamentally equal under natural and divine law.

How did Christian natural law differ from Aristotle on slavery? (Medieval Christianity)

Christian natural law emphasized human equality and rejected the idea that people are naturally slaves.

What was the Christian ideal regarding property? (Medieval Christianity)

All things originally belonged to humanity in common.

How was private property understood? (Medieval Christianity)

As a human or legal creation rather than something naturally given.

What obligation accompanied private property? (Medieval Christianity)

A moral obligation to support those in need, particularly the poor.

What were the two functions of medieval criminal punishment? (Medieval Christianity)

Repression of wrongdoing

How did Christianity influence punishment? (Medieval Christianity)

It emphasized subjective guilt, intention, and repentance, moderating some forms of punishment.

When were the High Middle Ages? (High Middle Ages)

Approximately 1100–1350 AD.

What happened around 1100 that transformed European legal thought? (High Middle Ages)

The rediscovery of Justinian's Roman law in Western Europe.

What were three causes of the revival of Roman law? (High Middle Ages)

Renaissance of the 12th century

Why did international trade encourage Roman law? (High Middle Ages)

Merchants needed a sophisticated transnational legal framework for activities such as banking and insurance.

What was Bologna's role in the revival of Roman law? (High Middle Ages)

It became a major center for the study and teaching of Roman law.

Who began teaching Roman law at Bologna? (High Middle Ages)

Irnerius.

Who were the Glossators? (High Middle Ages)

Roman-law scholars who studied and explained the Corpus iuris civilis.

What is a gloss? (High Middle Ages)

An explanatory note written alongside a legal text.

What did glosses do? (High Middle Ages)

Explained difficult passages

Who was Accursius? (High Middle Ages)

A major Glossator who compiled the Glossa ordinaria.

What was the Glossa ordinaria? (High Middle Ages)

A standard collection of thousands of glosses on the Corpus iuris civilis.

Why was the Glossa ordinaria important? (High Middle Ages)

It became an authoritative reference for courts and legal scholars.

What was the scholastic method? (High Middle Ages)

A method of resolving apparent contradictions through systematic analysis, distinctions, and reconciliation of authorities.

Why was the scholastic method important to legal science? (High Middle Ages)

It allowed scholars to systematize large bodies of apparently contradictory legal material.

What apparent contradiction existed in Roman law concerning the ruler? (Aquinas

High Middle Ages)

How did Aquinas resolve the contradiction concerning rulers and law? (Aquinas

High Middle Ages)

What is the compulsive power of law? (Aquinas

High Middle Ages)

What is the directive power of law? (Aquinas

High Middle Ages)

Is the king subject to the compulsive power of law according to Aquinas? (Aquinas

High Middle Ages)

Is the king subject to the directive power of law? (Aquinas

High Middle Ages)

What did Bracton argue about the king? (Bracton

High Middle Ages)