Legal History week 4

What are the basics we need to know about week 4 material, in what time are we, who was the king of the franks and the king of the visigoths ?

The time of wandering nations- various people were moving around europe, fighting for land. The fall of the western roman empire.

The King of the Franks was King Cholodovec (or Clovis)

• The frankish tribe followed frankish customary law, but they also came into contact with Roman law

• Chlodovech converted to roman cathilicism in 496 AD

The King of the Visigoths was Alaric

• he codified Roman law for his Roman people (lex romana visogothorum)

• He also codified the law for his Visigoth poeple (lex barbara Visigothorum)(exclusive because of exclusivity clause added by Alaric in the pramble)

• The application of these two followed by the personality principle

• Breviarium Alarici - The codification of Alaric

In 507 AD Alaric was killed by Clodovech in the battle of Vouille. In the south of France, Roman law was never forgotten so it kept being used there (Justinian sent his codes only to Italy, so they did not know about their existance)

Southern French people would use Roman law in its uncodified form:

• In regards to imperial regulations they used ‘‘lec posterioir derogat legi prioir’’

• In regards to jurists law, they followed the lex citandi (law of citations)

Tell me about Chalemagne the Pope of the time and a Treaty relating to Charlemagne. What Problem arose?

768-814 AD: Charlemagne (Charles the Great) was the King of the Franks

800: Charlemagne was Crowned Emperor of the Roman by Pope Leo III (Their doubt about a woman; Irene, could be Empress of the Roman Empire played an imporatnt role)

843 AD: Treaty of Verdun - Charlemagnes son divided the Frankish Kingdom in three parts. Through time, the middle and eastern part grew to be one single empire, known as the Holy Roman Empire of the German Nation. The East part became the Franch Kingdom

Problem: Is the king of France inferoir to the German Emperor?

Bastard son story: This man went to the pope in order to ask for recogniton for his bastard son. The Pope said that he is not the adequate person to decide that since the most powerful person in the kingdom is the King, he has no one superior to him.

→ Legal jurists turned this statement into the reason behind the Kings power.

Now he could:

• Issue ordinances that have binding power

• His absolute power was justified

• Crime of lese majesty is applicable to the King too

(Ironically the sovereignty of the King was based on writings of Scholars of Roman law)

What was the situation with customary law in France? In three steps.

Step 1:

Problem: There was no uniform picture in France

• Southern France used droit ecrit (written roman law)

• Northern France used droit coutumier (customary law)

The King of France did not like Roman law (it was used in the Holy Roman Empire of the German Nation) so he declared that:

Solution: In the South of France Roman laws is used because it is their custom

Step 2: The King of France forbade the teaching of Roman law at universities in France.

Step 3:

The Knig of France wanted to strenghten the position of customary law against roman law, in the 1453 Ordinance of Montils-les-tours:

• Customary law was put into writing

• Homologation - the royal ensorsement of customary law

= NO CODIFICATION because it does not get ots power from being endorsed by the king, customary law keeps having power simply because it is customary law. Writing it down is just one way to prove this rule, proper codification is the only way to prove what the law is. (most important was the Cotume de Paris (1510) which was reformed on 1580=

The French king inroduced a new hierarcjy based on the constantly updated cotume de paris:

1. local law

2. customary law of paris

3. Roman law

What developed in French Universities while the King of France issued rules to minimise Roman law?

The mos gallicus (a scientific and humanistic movement in French universities which helped downgrade Roman law.

• A Humanist approach, interested in the historical meaning of text

• Study of Greek language (in order to understand the actual sources)

• Legal and religious texts= reinvestigated

Result: The use of Roman law was downgraded

Italian reply to mos gallicus: They said that the humanists did not apprechiate the need of their time.

What did the French king (and which one) do to achieve Legal uniformity?

The French King Louis XIV (14th) issued a lot of ordinances in order to promote legal uniformity:

• On civil proceedings (1667)

• On penal proceedings (1670)

• On commercial law (1673)

• On maritime law (1681)

The Kings did not succeed in making a unifying codification. Why?

Because of Parliaments

• Origin: curia regis (King’s Court)

• The parliaments had powers:

1. Highest courts in their districts

2. Right of issuing regulatory decrees in the name of the king (arrets de reglement)

3. Right to refuse to register ordinances (droit d’enregistrement)

4. Right to withdraw ordinances sometimes (droit de remontrance)

If legal uniformity was achieved under a common codification, the Parliaments would lose their powers → they were against codification

How and when did the Unification of French law happen?

How many customs were there in France?

What legal scholars were in favor or against unification?

• The Unification of French law was not possible before the french revolution.

• There were more than 700 customs in France

• Voltaire was in favour of unification.

• Montesquieu did not belive diversity was a bad thing. (Montesquieu influenced natural lawyers supporting unwritten law. They changed their opinion and supported the codification of natural law.)

What do you have to know about king Lous XVI (16th)?

• He had waged many wars

• The kingdom had financial problems

• Solution: New land tex

• To tax people he needed the accepantce of the ‘‘estates of the realm’’ (Estates General)

• Louis XVI summoned a meeting with the estates of the realm in 1789

• Last time this happened was 1614 by Louis XIV

The Estates of the realm consited of:

The clergy: 300 representatives

The nobility: 300 representatives

The citizenry: 600 representatives

What were the Cahiers de dolenace ?

The Books of Grievances representatives of each realm would bring would bring with them to the meeting with King Louis XVI. Usual complaints were: a constitution, codification, more power to the people (especially the citizenry)

What was the problem of the meeting with King XVI and the Estates of the realm? What did it trigger?

The first point of disagreemwntin this conference: how will votes be casted?

Each realm would have one vote? (preferred by Clergy and Nobility)

Each person would have one vote (preferred by Citizenry)

No solution found → Stalemate

So:

On 20 June 1789 The Citizenry left and held their own meeting in the tennis court of versailles. Said they will not part before a constiution was drawn up. (Tennis Court Oath)

14 July 1789: People of Paris stormed the prison of Bastille. (Official start of the French revolution)

August 1789: Declaration of the Rights of Man and of the citizen:

• Inspired by the american declaration of independence

• Contained natural, inalienable and sacred rights → Natural law

• Important contents:

• Rousseau:

Art.3 - Sovereignty resides with the people

Art.6 - Law is the expression of the general will (volonte generale)

• Beccaria:

Art. 8 - Principle of legality (including no retroactive effect)

• Montesquieu:

Art. 16 - Separation of Powers

June 1791: Flight to Varennes - The King tried to flee the country (failed)

14 September 1791: France became a Constitutional Monarch (Le grande acceptance)

10 August 1792: Factual end of Constitutional Monarchy

• King used his right to veto too often

• His functions were suspended (still king but no power)

22 September 1792: Proclamation of first French republic

• King deposed (26 September 1792)

21 January 1793: Citizen Capet (King Louis XVI) guillotined

• Charges of treason

Reign of terror:

Head of movement: Maximilien Robespierre

• Les masses rouges (the red masses)

• Arrested by opponents and guillotined

Briefly mention the 5 stages of the French revolution.

1. From absolute to constitutional monarchy

• 5 May 1789 - 1 October 1791

2. From Monarchy to Republic

• 1 October 1791 - 24 June 1793

3. From Reign of Terror to Directory

• 24 June 1793 - 22 August 1795

4. From Directory to Consulate

• 22 August 1795 - 13 December 1799

5. From Consulate to Empire

• 13 December 1799 - 18 May 1804

End of Empire: 6th April 1814

How was the Civil Code Prepared ?

The new constitution had an article which demanded the codification of the law.

1st Draft (1793) of the Code by Mr. Cambaceres

• 719 Articles

• Jacobines considered it too traditional

2nd Draft (1794) of the Civil Code by Mr. Cambaceres

• 297 Articles

• Head of Jacobines, Robespierre guillotined → Considered to revolutionary by new faction

3rd Draft (1796) of the Civil Code by Mr. Cambaceres

• 1104 Articles

• Draft never adopted because coup d’etat by Napoleon

How was Napoleon’s Civil Code made? Who was the main darfter? Whose was the Code influenced by? When did it come our? When was the Conoration of Napoleon?

The main drafter was Jean Etienne Marie Portalis (he was from the south, so he was familiar with roman law).

It was Inluenced by works of:

• Pothier: He wrote about Roman law

• Bourjon: He wrote about customary law

• Domat: He wrore about natural law

& Jean Etienne added some revolutionary law and some ordinance law (arret de reglemet)

N.B: A lot of material was taken from roman law. Customary differed a lot, while Roman law applied universally in all of France (regardless of whether it was a subsidiary source or custom). It was the ration thing to do.

N.B: Napoleon changed draft himself, 2 points: divorce and adoption

Civil Code - Came out in 1804

2 December 1804 - Coronation of Napoleon

Countries which were influenced by the Napoleonic Code: the Netherlands, Belgium, Luxemburg, Germany, Poland, Egypt, Italy, Spain and colonies in America, Quebec and Louisiana.