Presentation on theme: "Latin American Law Last updated 31 Aug 11 Roman law roots > Civil law tradition > Written sources > Corpus juris civilis."— Presentation transcript:
Latin American Law Last updated 31 Aug 11 Roman law roots > Civil law tradition > Written sources > Corpus juris civilis
Model for borrowing Gain perspective Discover truths Impose / power Value of knowing other legal systems
What is civil law? What is Roman law?Roman law Lena Mulla – where does common law fit?
Roman law chronology … (1000 years) Twelve Tables (450 BCE) Roman Republic (510 BCE) Lex Aquilia (287 BCE) Gaius (117 CE) Praetor (33 CE) Justinian CJC (534 CE)
Twelve Tables (450 BCE) Table VIII. Torts or Delicts 2.If anyone has broken another’s limb there shall be retaliation in kind unless he compounds for compensation with him. 3.... If a person breaks a bone of a freeman with hand or by club, he shall undergo a penalty of 300 asses; or of 150 asses, if of a slave. 21. If a patron defrauds a client he shall be accursed.... Sarah Keller – is there natural law?
Lex aquilia (tort statute 287 BCE) Gaius D 9, 2, 2 pr. (text of first chapter) The Lex Aquilia provides in its first chapter: “If anyone kills unlawfully a slave of either sex belonging to another or a four-footed animal of the kind called pecudes [cattle], let him be ordered to pay the owner whatever was the highest value of the victim in that year”
Praetorian Actio Rei vindicatio (Action on Ownership) Titius shall be judge (iudex). intentio: If it appears that the thing which is the object of litigation (subject matter) belongs to the plaintiff under the law of Roman citizens, clausula arbitraria: and if this thing is not restored (restitution in kind) condemnatio: you, the judge, shall condemn the defendant to pay to the plaintiff a sum of money equivalent to what the thing will be worth. If it does not appear, you shall absolve the defendant. Sarah Keller – more like a common law trial or civil law trial?
Institutes of Gaius (117 CE) BOOK I (Persons) 8. The whole of the law observed by us relates either to persons or to things or to actions. Let us first consider persons. 9. The primary distinction in the law of persons is this, that all men are either free or slaves. BOOK II (Property) 1. In the preceding book we treated of the law of persons. Let us now consider things. These are either in private ownership or regarded as outside private ownership. 12. Further, things are divided into corporeal and incorporeal. 13. Corporeal things are tangible things, such as land, a slave, a garment, gold, silver, and countless other things. 14. Incorporeal are things that are intangible, such as exist merely in law, for example an inheritance, a usufruct, obligations however contracted. BOOK III (Obligations) 88. Let us now proceed to obligations. These are divided into two main species: for every obligation arises either from contract or from delict.
Justinian (527-565 AD) Corpus Juris Civilis Institutes (4 books – 533AD) Digests / Pandects (50 books – 533AD) Codex (12 books – 534AD) Novels (decrees after 534AD)
Justinian Digest (534 CE) 1.3 On Statutes, Decrees of the Senate, and Long Usage 12 Julianus (Digest 15) It is impossible for every point to be expressly comprehended in statutes or senatorial decrees; still if, in any case that arises, the meaning of the enactment is clear, the presiding magistrate ought to extend the rule to analogous cases to the one expressed and lay down the law accordingly. 17 Celsus (Digest 26) To know the statutes does not mean to have got hold of the actual words, but to be acquainted with their sense and application. 18 The same (ibid. 20) Statutes ought to be interpreted indulgently, so as to preserve the intention. 21 Neratius (Parchments 6) consequently the reasons for the law laid down ought not to be inquired into; or else a great many rules already established will be upset. 23 Paulus (on Plautius 4) Where a particular interpretation has always been received, there ought to be no change made. Proculians (rationalists / strict interpreters, identify logic / use analogies / politically “progressive”) Sabinians (liberal interpreters / identify original intent, preserve antiquity / politically “conservative”) Taryn Kadar – who has better argument?
Roman law perdures … Lena Mulla – what are main “tree trunks”?
Classic Roman Law (100AD - 300 AD) Swiss Civil Code (1907) Austrian Civil Law (1812) Louisiana Civil Code (1808) German Civil Code (1900) French Civil Code (1804) Turkish Civil Code (1926) Italian Civil Code (1942) Japanese Civil Code (early 1900s) US Law
US Supreme Court frieze “18 great lawgivers” (Justinian is before Mohammad)
Is common law or civil law more like Roman law? Precedents Forms of action (remedies) Stages: writ / proof Proof left to layperson Law / equity distinction