History of Law

Corpus Iuris Civilis

• Codex- “Modernly-applicable” decrees by Emperors (Latin)

• Digest: (Latin) Basis of modern-day private law (contract); most important text ***

• Institutiones: simplification of framework

• Novellae Constitutiones- Decrees by Justinian

Edict of Rothari

• Written text including Customary Laws of Longobards

• Key in limiting FAIDA/ criminal acts in vengeance for criminal act

• Sanctioned monetary compensation for criminal acts, en lieu of violence

• Sanctioned PERSONALITY OF LAW since it applied to Longobards only (not to Romans) -ie Territoriality of Law was typical of Roman Empire—

School of Glossators (Bologna)

• Arose in Bologna, as a school interpreting Digest -recently rediscovered- in a modern key

• From “Glossa”: Notes jurists would write in Digest’s margins

School of Commentators

Middle Ages

• Feudalism-based economy: Vassalage- loyalty bond between lord & vassal; & Benefice (land grant)

• Pluralism: Legal fragmentation- Roman law, Barbarian customs, etc-; Political fragmentation- Comuni

Feudalism

• Feudalism-based economy: Vassalage- loyalty bond between lord & vassal; & Benefice (land grant)

Roman Law

Western Roman Empire (til collapse)

Eastern Roman Empire (post-collapse)

Princeps Iudex

Pre-Late Middle Ages doctrine, acc to which Ruler was despot who could create law, as well as interpret it. Conception typical of times before Digest discovery

Christian Aequitas

• Late Middle Ages belief that Princeps/ruler was interpreter and not creator of law. Ie King was guardian of the natural, divine order which governed and existed in the world

Effects of rediscovery of Digest

• Renewal of Canon Law

• Establishes a new method in contract law (w school of Glossators)

• Revival of Jurists’ role

• Est. of “Right Law”/ “Divine Law”

Frederick II

Louis of France

Ius commune

• Universally applicable principles to Christiandom

• Different to Common Law which was applicable to British isle peoples only (ie Personality of Law)

• Includes: IUS CIVILE/ IUS CANONICUM

Canon Law

• Renewal post Digest discovery

• Exemplified by Corpus Iuris Canonicum

• ex- Marriage fell into its category

• Gratian’s Decretum

Common Law

• Main source is Case-Law

• “Common” to British people (personality of law)

• Developed in England by 1066 (10 years prior Digest’'s rediscovery in Montecassino) when Normands invaded, and Battle of Hastings unfolded

• Different to IUS COMMUNE

Iura propria

• Applicable to territories and peoples individually

• Includes: 1) Feudal Law- gov relationships btwn lord & vassal; 2) Municipal Statutes- Regarding criminal law/ issued by Cities & Admin.; 3) Ius Mercatorum- Commercial Law/Trade

Alfonso of SPA

Courts in Common Law (Henry II)

Magna Carta (1215)

• feudal negotiation

• prevents absolutism of despot and power abuse

• King (John) shall ask feudal assembly permission to decide upon exceptional measures (ex taxation)

• Sets stage for HABEAS CORPUS: Innocence unless proven guilty

Thomas Aquinas + John of Salisbury

• Proponents in Continental Europe and GB of Christian Aequitas

• However, GB legal systems later distanced itself from continental Europe

Baldo degli Ubaldi

Priority is of Individual Law (Ius propria), but IUS COMMUNE shall fill gaps if any are present in the law