1. The Evolution of “Western” Law Dr. Brian Levin-Stankevich Chancellor and Professor of History University of Wisconsin – Eau Claire

2. Introduction Why am I interested in the history of law? – – Dissertation – – Anatolii Fedorovich Koni – – Library of Congress – – “Decisions of the Cassation Courts on……” – – Why? Henry Maine

3. (Existing theories of jurisprudence) take no account of what law has actually been at epochs remote from the particular period at which they made their appearance… The mistake.. Is therefore analogous to the error of one who, in investigating the laws of the material universe, should commence by contemplating the existing physical world as a whole, instead of beginning with the particles which are its simplest ingredients. Maine

4. The “Particles” of Law Substance Laws Statutes Decrees Constitutions Civil and Criminal Codes Administrative Law Public Law Commercial Law Normative Judicial System Courts Lawyers Trials Judges Precedent Legal System Legal Order

5. Chronological Plan for Speech Greek and Roman Law Tribal Law Canon Law (Roman Catholic Ecclesiastical Law) Royal Law Common Law Civil Law

6. Themes to Understand Sources of Law Jurisdictions – who and what is included Governance and Law Process Philosophy and Jurisprudence TRANSITIONS

7. Idea of Law Justice “Right Order” Divine Will Peace Conflict Resolution Predictability – – Contract – – Property Rights Obligations

8. Image of Law and Justice Moses (Rembrandt) Law as Written Command

9. Primitive Law Characteristics of primitive law – – Oral – – Simple, informal procedure, no privileged roles but elders – – No complex institutions – – No contracts – – Property communal use – – Dependencies led to mutual obligations = feudal – – No clear evolution, change very gradual

10. Ancient Greece Mycenaean Civilization 1600-1100 BCE Ca. 1100 Dorian invasions 800 – 300 Greek Civilization – – Polis (poleis); connected to soil; independent – – Small, manageable – – Pericles (490-429 BCE) – – Peloponnesian Wars (431-404 BCE) Macedonian Conquests (Philip, Alexander) 4 th Century BCE

11. Greek Law – – Draco’s Laws (ca. 620 BCE) – death penalties – – Solon (ca. 570 BCE) Both to resolve class conflict, land distribution – – Themis – goddess of justice, “natural law,” the right order of things, an Oracle at Delphi – – Dike – daughter of goddess of justice – – Psephismata – rulings (compare to Roman edicts) – – Nomos – formal laws, statutes

12. Definitions Anthropomorphic Casuistic Deductive (Plato) Inductive (Aristotle) Dialectic – – Refutation of an opponent’s thesis through questions that identify contradictions – – Deriving a generalization from a series of propositions – – Definition of concepts by drawing narrower and narrower distinctions and synthesis of components into a whole

13. Greek Influence on Law Practical or theoretical? – – Dialectical method: classification and conflict – – Meaning of words and intention $25 crime in FL 2 nd Amendment Intent of the legislator Direct or indirect? – – Codes, Stoic influence Code influence on Twelve Tables

14. Rome Origins – Romulus (753 BCE) – – Rome of the Kings (753-509) Republic (509-31 BCE) Empire (31 BCE – 476 CE) Christianization – Constantine, 313 Edict of Milan Invasions – 4 th and 5 th C, Germanic rulers Byzantium – lasted until 1453

15. Sources of Law Twelve Tables – – Grounds for divorce – – Agency in procedure – – Guardianship – – Contract (stipulatio, oath, formalistic) Statutes – – Comitia centuriata, tributa, concilium plebis (Lex Hortensia, 287 BCE) – – Role of magistrate to propose, assembly to accept or reject, no amendment Edicts of Praetors – Annually elected, statements of how he will apply law, special pleadings allowed or defenses disallowed. Some sense of stare decisis. Urban, Peregrine, Curule (markets)

16. Interpretation of Statutes – – – College of pontiffs (religious leaders) – Sale of son 3 times, sale of daughter once = free from patria potestas – – Law books by jurists – Scaevola, 95 BCE – – Senatus consulta – praetor’s edicts began to be enforced as law in Empire – – Imperial constitutions, orders, judgments, opinions on law – all issued by virtue of imperium No recognized role for Custom

17. Q. Mucius Scaevola Classified civil law into (dialectic) – – Law of inheritance Testaments; intestate succession – – Law of persons Marriage; guardianship; free status; paternal power – – Law of things Possession; non-possession – – Law of obligations Contracts; delicts

18. Sources of Roman Law – – Gaius Institutes – 160 CE – – Jurist writings (Ulpian, Paul, Papinian, Modestinus, and Gaius) – – Law of Citations, Theodosius, 426 CE, jurists legitimized – – Corpus Iuris Civilis Justinian’s Code, Digest (Pandects) and Institutes -529-533 CE – – How to know the law in effect Justinian’s Novels (later legislation)

19. Family Law Marriage: cum manu = status of daughter Religious ceremony “purchase,” a form of mancipatio “usus,” co-habitation, 1 year, not 3 nights apart (abolished in early Empire) Sine manu = civil marriage became common Divorce – Early Rome - for adultery, tampering with keys, poisoning a child, male only Later - liberalized, few penalties for any reason, even after Constantine

20. Patria Potestas – – – complete power over person and property – – Subordinated by birth, marriage, adoption – – Personal “allowance” = peculium – – Adoption: 3 sales, given back, property claimed by adopter, recognized by praetor. – – Emancipation – 3 sales, then purchaser or seller “manumitted” son (as for a slave)

21. Property Distinctions – – Public (res publicae) or private (res privatae) – – Corporeal (tangible) or non-tangible Mancipatio – – Physical transfer or witnessed (tapping the scales, ingot) – – Usucapio, possession for period of time (3 yrs. Land) – – Protections against false claims, clear title – – Easements (stayed with land, not grantor) – – Usufruct (life tenancy)

22. Loan security – – Fiducia – transfer of ownership to creditor, allowed use by debtor, returned on payment. Could not “re-finance.” – – Hypotheca – “mortgage,” gave a lien or claim to creditor. Could be used for a second hypotheca.

23. Contract Individual contract types, no general theory – – Verbal; real; literal; consensual Stipulatio (verbal): strict form, no allowance for fraud or duress until 1 st C. BCE. – – Verbal, use of same word (“I do”) – – Broadly used for all relationships, sales, surety – – The knight Canius (Cicero)

24. Contract Consensual: – – Sale – agreement, thing, price; misrepresentation; seller’s disclosure – – Hire – little used, slave labor. Misrepresent skills. Inability to finish work; damages. Exemption of aristocratic “professions” – – Partnerships; Condictio: action against contract or agreement, for return of money for non-performance or immorality greater than the giver’s (prostitution exempted)

25. Delicts and Tort Law – civil actions from “crimes” – theft, violent robbery, property damage, personal injury, negligence Quasi-delicts – tangential liability (ship captain for crime on ship, property owner for action of tenant) Noxal liability – liability of paterfamilias for action of child, later responsibility for damage caused by property or animals. Succession – movement from agnate (male only) to cognate (blood lines)

26. Law in Greece and Rome Sources of Law (texts, literary, human, divine, expression of, reference to) Philosophy of Law Equity Dispute resolution Communication of Law (written, verbal, tale)

27. Germanic Europe Fall of Rome Frankish Empire – Charlemagne Rise of Kingship and States

28. Tribal Law Legal cultures of the various tribes – – Local custom Roman “vulgar law” Lex Salica (496, Clovis) – – Convince disputants to submit to set outcome – – Values inherent (rape, murder, slander, family responsibility) – – Eliminate private warfare

29. Elements of ritual, stilted language, formalism Ordeal (fire, water, morsel) – belief in arbitrary fate Elders (witan) kept tribal peace through judgements Extent of political rule still limited, little “machinery” of governance

30. Impact of Christianity Made the local ruler (tribal gods) into a potential king (universal god) Reinforced oath-taking, made clerical role (Bodo) Gradual change toward greater equity in judgments (gender, class) Introduced writing and written records Built on sense of community of believers, large tribe

31. Integration Spiritual and secular little differentiated Clergy role in justice administration Restoration of “right relationships” over recognition of “rights” Penitential orders – monastic, based on “sin,” used to qualify actual crime and intent Christianity grafted onto tribal custom

32. Law of the Church Substantive – scripture, some Roman influences (vulgar Roman law), regional folklaw, writings of “church fathers,” decretals of kings and popes From populus christianus to the corporate church – – 10 th C. Cluniac monasteries – – “Peace of God” – – Attack simony (lay power over appointments, sale of church offices) – – Attack nicolaism (clergy marriages that tied them and clerical office to local and clan politics, inheritance of office, sale of office, elimination raised question of appointment authority)

33. Tension between lay and papal authority Leo IX (1049-1053) – asserted authority over bishops 1059 – right of cardinals to elect pope Gregory VII – Investiture Controversy vs. Henry IV (H.R.E.) 1075-77 – – Enlisted scholars to support claims – – “freedom of the church” – – Manifesto on papal powers – – Henry capitulates, papacy as political force

34. Investiture Wars, Concordat of Worms, 1122 Pope gained authority over all clergy, across boundaries 11 th -12 th C. – inside church, a legal profession, legal scholarship, sources of law Perhaps the first great marketing campaign in modern times Gratian, 1140, Concordance of Discordant Canons (built on prior compilations) Sources: Divine Law, Natural Law, Human Law

35. Gratian: secular rulers subject to their own law; custom subject to natural law; changeability of human sources of law = new idea Human laws subject to natural law. Natural law subject to divine revelation. Pope the sole authority on divine revelation. Church takes on corporate structure; councils as quasi- parliaments; specialists; growth of professional bureaucracy Prorogation: each legal system offers to settle disputes from the other; source of conflict

36. Jurisdictions of Canon Law Marriage: a sacrament; contractual relationship – free will, duress, limited divorce. Contract creates status (lifetime) Inheritance: Making the will deemed a religious act (conversely, intestate also included). 1/3 chieftain, 1/3 heir, 1/3/ God’s gift. Church protected gifts to church. Feudal opposition Property: corporate ownership; trusts; foundations (corporations of goods) Contract: establishes moral obligation; economy demanded expansion of contract law; usury still prohibited, but “legitimate” interest permitted. Papacy as banker.

37. Definition Canon – law of synod, ecumenical council, or bishop

38. Becket vs. Henry II Pope supported Norman Conquest (1067), but William I declared secular authority over pope 1154, Henry II ascends English throne with help of papal supporters 1162 appoints Thomas Becket, Archbishop of Canterbury (was already chancellor) 1164, Constitutions of Clarendon, secular authority restated, Becket denounced Henry. 1170, Becket murdered Dispute over ecclesiastical jurisdictions, “writs of prohibition” Henry later renounced offending articles, 1172 1215, English church “freedom” repeated in Magna Carta

39. Law of the County and Manor Feudalism – – Economy and governance = local – – Villages, “hundreds,” counties – – Lordship units, land, benefice, vassalage to benefactor – – No “imperial” administration, government – – Fealty relationships provided upward and downward predictability, justice administration, tax collection, military service

40. 8 th – 10 th C. – stirrup, armor, knights, mounted warrior – expensive to maintain. Reduced use of peasants as combatants Military service bound landowner and feudal law bound labor to that land/manor “interest” in property by knight, became property “right”, service became a money payment Contractual reciprocity Networks of homage and fealty, principal to liege lord (usually king) Contract of homage/fealty cancelled by provocation, failure to fulfill obligations

41. Feudal Justice Lord had right to hold court over his vassals or over his tenants Lord presided, peers adjudged Appeal to court of lord’s lord “Litigation was second only to feuding and warfare as a form of conflict favored by the baronage.” Breach of faith = “felony” (Norman)

42. Manorial Law Feudal law – among propertied classes Manorial law – participatory, civil and criminal. Labor shortages accrued to benefit of “serfs.” Later peasant uprisings a form of rejection of the feudal contractual reciprocity.

43. Sacred and Secular Papacy – first “nation”; crossed borders; unified; unified system of law Delimitation of ecclesiastical jurisdiction left responsibility for all else in secular hands Continuous jostling over the boundary of sacred and secular jurisdictions Both areas developed discrete “sources of law” and discrete procedures Secular legal systems pluralistic (civil, criminal mercantile, urban, county/manor, royal law) but ecclesiastic unitary.

44. Law and Courts, 10 th – 15 th C Multiple jurisdictions within each imperium – – Custom (feudal, baronial, manorial) – – Mercantile (law merchant, Staple - reciprocity, Admiralty- quick justice, port towns) – – Urban (granted by charters, guilds, peer judges, oath communities, responsible for defense)

45. Royal Law Kingship defined by independence of church (what’s left) Royal attributes (Berman, 408) “curia regis” – king’s household, nascent bureaucracy, circumvented traditional nobility – – Parlement in France Royal administration over feudal privileges Limits on kingship

46. Common Law Henry II (1154-1216) – – “foreigner” kings, loyal judiciary, local involvement – – Absentee kings, grew administration in stead – – 1166 Assizes of Clarendon, royal law over feudal – – Court of Common Pleas (1178), justices in eyre – – King’s Bench

47. Magna Carta 1215 – – Freedom of church – – Due process – – Proportional punishment – – Justice quick and without regard to cost – – Ratifying the common law

48. English Revolution Hundred Years War, 1338-1453 Henry VII – king’s court (Star Chamber), JP’s strengthened Henry VIII – 1529 – divorce, Church of England Parliament called when king needed money Charles I – religious intolerance – – 1640 Grand Remonstrance, Oliver Cromwell – – Royalists vs. Anti-royalists – – 1645 New Model Army – – Charles killed, 1649 by “rump” Parliament

49. The English Revolution 1649- 1660 – Cromwell, Interregnum – – Religious dissent breaks up [holistic systems] – – Military dictatorship Charles II reinstated, supported by gentry 1685 – succession crisis, James II. Catholic 1688 – gentry call William of Orange, offered kingship, Bill of Rights: succession, parliament, civil rights, act of toleration

50. English Revolution Divine right transformed into constitutional monarchy Anglican Church made official, others tolerated (but with disabilities) Growth of the party system, Whigs and Tories Judges: from “at will” to “during good behavior” Royal courts abolished, common law courts made superior

51. Legal Outcomes Precedent – decisions as comprising custom and reasoning of professionals. Dictum or Holding. Precedent. Later stare decisis Procedure: – – Independence of jury; tried facts and questions of law – – Procedural rights of accused – – Adversarial procedures (vs. accusatorial or inquisitional) – – Rules of evidence – probability, scientific influence

52. Protestant Reformation Religious revolt against Catholic Church Secular revolt against Church “organization” 1648 Peace of Westphalia – – Sovereignty – – Secularization of ecclesiastic law – – Spiritualization of secular law

53. Protestant Affect on Legal Thinking Focus on individual and individual choices Concept of “sin” as cause for law and punishment Law as reflecting the 10 Commandments Substituted “Two Kingdoms” for “Two Swords” Further split secular from religious thinking

54. Renaissance and Reformation Theories on the “state” Macchiavelli Humanism Social Contract (Thomas Hobbes, John Locke) Scientific Revolution Enlightenment (Rousseau) Natural Law separated from scriptural belief

55. Transitions Secular society – natural law – “positive law” Codification of Law – – Prussia, 1794 – – France, Code Civile 1815 Historicist view – Montesquieu Constitutions (English, American, French) Separation of Powers Rule of Law

56. Reception of Roman Law Study of Justinian’s Corpus Iuris Civilis – – changes in meaning and adaptations – – 1100-1250 Glossators – explanation of original text – – 1250 – 1400 Commentators – commentaries on elements of the texts (e.g. property, person)

57. Law and Rights Natural Law – dominant theory – – all are equal – – inequality, property, government result from both materials needs and social nature of humans and also from following divine revelation Law should conform to church scripture Natural law is reflected in custom Law as “found” not “made”

58. French vs. English law French Written procedures Professional judges Interrogation under oath Laws systematic, taught in universities Royal law was substantive and procedural English Oral proceedings Lay justices and jurors Inquisitional procedure Law practical, casuistic Royal law procedural

59. 18 th C. France Ancien Regime 360 “codes” South = Roman/written, North = customary law Distributive obligations = distributive rights Grants and charters legal “person” attached to status or service hereditary or earned, all Catholics Estates Clergy Nobility of the Sword Nobility of the Robe 3 rd Estate : Bourgeoisie

60. Declaration of Rights of Man and Citizen Principles – – Equality and freedom for all “men” – – Redefinition of Rights – – Separation of Powers – – Government accountable to laws – – Freedom of religion Active vs. Passive Citizenship – – property ownership

61. TITLE III. CONCERNING THE RIGHTS OF PERSONS. The principal division of the law of persons is this, that all men are either free or slaves. Freedom (from which is derived the designation free) is the natural right enjoyed by each one to do as he pleases, unless prevented by force or by law. Institutes of Justinian

62. 1. Men are born and remain free and equal in rights. Social distinctions may be based only on common utility. Declaration of Rights of Man and Citizen, 1789

63. The law is the expression of the general will. All citizens have the right to take part, in person or by their representatives, in its formation. It must be the same for everyone whether it protects or penalizes. All citizens being equal in its eyes are equally admissible to all public dignities, offices, and employments, according to their ability, and with no other distinction than that of their virtues and talents. Declaration of Rights of Man and Citizen, 1789

64. Code Civil, 1804

65. The laws are executory throughout the whole French territory, by virtue of the promulgation thereof made by the first consul. They shall be executed in every part of the republic, from the moment at which their promulgation can have been known. France, Civil Code, 1804

66. American War of Independence Law of the Colonies Declaration of Independence – – French and English ideas Federalist Papers Constitution of the U.S.

67. 19 th and 20 th C Legal Imperialism Napoleonic Wars – influence on Russia Africa and the Americas Abuses of the “Rule of Law” – – Form over substance Manipulation of U.S. Constitution – – Decisions by liberal and conservative supreme courts – – States’ Rights and federal law

68. Further Lectures The Common Law of England and its Adoption in America Judicial Decision-Making and the Interpretation of Law in Common and Civil Law systems Key Decisions in American Legal History U.S. Legal System