Legal History week 1

How can statutes, even acient statutes, be used to settle disputes in modern society?

Interpretatio by the judiciary. Interpretation by the judiciary of a statute is always necessary before it can be applied!

What are methods of interpretation?

Intrinsic:

• Grammatical Interpretation

Extrinsic (courts using information outside the text of law):

• Systematic (looks at context of entire legal framework, legal system)

• Based on legislative History (using documents from legislator (eg. parlimentary drafts to intrepret the intention)

• Historical (background and conditions that existed when the law was enacted)

• Teleological (purpose of the law using the provision itself)

What is Natural Law?

Law that should be the same for everyone everywhere at any given time. Its the ideal law.

Codification meaning + essential elements

Codification: codey (book) + facere (to make)

Essential elements:

1. Written provisions

2. Issued by body with authority

3. Exclusivity; no other sources of the law to be used

Examples of Codifications of Civil law?

• Law Codes of Justinian (533-534)

• France (1804)

• Germany (1900)

Who was Jeremy Bentham?

1748_1832

He was the one who intoduced the notion of codification.

Who was Jean Jaquces Rousseau?

1772-1778

He introducted the notion of a social contract.

• The agreement people reach to form a society

• Law is binding only when it expresses the general will (Volonte General)

• The people are the ones who need to make the law

Who was Ceseare Beccaria?

Introduced the notion of Nulla peona sine previa Lege (no penalty without law)

In his work ‘‘dei delitti e delle pene’’ (about crimes and punishments) he wrote how it is unfair to punish someone for something he did not know it was a crime. First, the governmnet had to codify the crimes, and then based on that book, punish criminals. He also considered that the judges should not interpret the laws (bouches de la loi)

Explain Epicureanism

From Epicursus (341- 270 BC)

Said the Natural state of man is horrible (wars) → man tries to overcome this state by submitting himself to be ruled by law

Formal Concept of Law: it matters only when it is passed by the proper authority, no judgement of content

Thomas Hobbes also wrote about Epicureanism

Who is Zeno?

Zeno founded the Stoa. (333-262 BC)

• Law needs to be just (fair in principle) and equitable (fair considering the circumstances of the case)

• Material concept of Law: only ‘‘just’’ statutes are laws

• Roman stoics: Seneca, Epictetus, Marcus Aurelius

What is Aristotles take on Natural law?

He said political justice has two parts:

1. Natural Part - The same for everyone and its not dependent on opinions

2. Legal Part - originally indifferent (gleichgültig) ; when it is laid down (the legal part), then it is not indifferent.  There are choices to be made that are morally neutral, the legislator needs to make those rules

What was Gaius I take on Natrual law?

He said people that are governed by statutes and customs have their own peculiar law (a law that is unique to a particular juridiction) and the common law of all mankind.

Their own peculiar law = Ius civile (civil law): The law which a people established for itself as the special law of that specific civitas (state) (emancipation of land in rome) 

Common law of all mankind = Ius gentium (law of nations): The law that natural reason establishes among all mankind is followed by all people alike and is observed by all mankind.

Explain Chruch law

We split Chrurch law into 2 categories:

1. Divine law

• written divine law (bible)

• unwritten divine law (natural law)

1. Man made law

• Ecclesiastical law → Corpus Iuris Canonici (canon law) and other ecclesiastical sources

• Secular law

a. unwritten (customary law)

b. written → corpus iuris civilis (roman law, ratio scripta) and legislation

Man made law should always be compared to divine law. If man made law is in contravention with natural law, then it is void. That is why natural law was important in the middle ages.

Force/impact of natural law

Middle ages: People argued that natural law can put aside unreasonable or unfair man made laws Aequitas canonica (canonical accuracy)

Who was Hugo Grotius?

1583-1645

He wrote about natural law. In his work De iure belli ac pacis (1625) he said Even if there was no God, there would still be natural laW and this way he introfuced the new era of secular natural law (natural law that is not based on religion necessarily)

After Grotius other scholars started constructing systems of natural law: Pufendorf, Thomasius, Wolff: Professors of natural law which argued that they use ratio (reason) for natural law. Difference betwee them and Grotius: They hated Roman law

What did opponents of natural law say?

If you look at the systems around the world of natural law, then it should be the same everywhere, but if you look at the systems themselves they are quite different thus it is a matter of opinion and consequently there is no such thing as natural law.

What was the Enlightenment?

Epoche der Aufklärung (17th-18th century)

• Age of reason

• Krant: Said that people should think for themselves (sapere aude). You shouln’t rely on others, you should think for yourself, laws and ethics are self evident.

Why were natural lawyers in favour of codification? (If law is self evident why would we need codification? since it is the same everywhere)

1. Montesquieu (1748): Ideal Law (natural law) is adapted to local and special circumstances eg climate,language, religion

2. Intellecutal economy: Most people do not think about laws. Its more practical if some specialised people wrote a code which then people can simply read.

3. Cesare Beccaria said: The Government can only punish people only if they have laws before the crime itself (principle of legality). We need to codify criminal law and then you are allowed to punish someone (Dei delitti e delle pene (1764))