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Summary Legal history exam notes
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Legal HistorySummaries
2018-19
,Week 1- legal history- summaries
CODIFICATION
CODIFICATION
Unwritten law is older than written law. Codification is a relatively new phenomena, the word was first used by the Englishman
Jeremy Bentham in the age of enlightenment. A codification is not conceivable in a society that does not yet have a government.
Ultimately it is the authority of the government (legislator) and not the quality of the content of the text that elevates it to
codification. A code can be changed by later modifications, the number of articles can be increased. When we refer to codification
we are mainly talking about continental Europe since the England has no code. After Bentham’s idea of codification, David Dudley
Fields adopted a code for New York. At the time New York did not enact the code, but California and a few other states did.
Since this time many states have codified laws, however many areas of law in the US are still governed by common law, essentially
it varies state by state. Before codification every country had its own legal sources, mostly customary law, supplemented by the
common law (Roman law.)
3 characteristics essential for codification
1.) Provision committed to writing or written provision
o Oral law is a source of law, but it is not codification.
2.) Issued by a body with authority
o most often this is the government but can be religious authority (usually a religious based government).
3.) It is exclusive because of this governmental authority (this is the legislator)
o complete legal record- formally not materially)
o There can be no other source of law that applies in the same field.
o It is the only source of law upon which the judge may base his verdicts
o Not materially exclusive though, judge may need to interpret
→ The authority of government grants completeness to the collection of written laws and that’s what makes it a codification
Formal exclusivity→ reality
o Formal exclusivity forces the judge to base his
Formal exclusivity decision on the current code and no other source of
law
o The formal rule is that he has to base his judgement
on the code
Material exclusivity→ fallacy
o Many believe that the code needs to be huge and have
Material exclusivity provisions for all possible scenarios (material
completeness.)
o That is simply not possible, because we will not
know how communication will take place in the
future yet we will probably continue to have the same
code
o Material completeness is never to be achieved, the
legislator cannot foresee everything.
Jean Jaques Rosseau (philosopher in the enlightenment era who depicts only one source of law)
Jean quantified what is meant by ‘issued by a body with authority.’ He wrote a book on social contracts, back then there was no
codification only customary rules and Roman Law (used to solve private law matters.) Jean attacked the validity of these sources of
law, he believed that the people together form sovereignty and that sovereignty lies within them, therefore we are the only ones that
can make legally binding documents. He did not believe that Roman law and Customary law were legally binding since Roman law
was made 1200 years previous and customary laws were made at a local level which cannot dominate all persons. He believed that
you need to draft a contract binding us all (code), you therefore give authority to legislate, customary law and Roman law do not
,Week 1- legal history- summaries
back the sovereignty of the people, the peoples will is the legislator and one should not know any other authority than the laws of
the state.)
Jeremy Bentham and David Dudley Fields
Jeremy Bentham is credited with inventing codification, he attempted to apply it to the English legaL jurisdiction, it did not work.
David Dudley Fields took Bentham’s idea and made a legal code for New York. New York did not adopt this legal code, but
California decided to instead.
Purposes of codification
1.) Provides legal certainty,
o especially necessary in the area of criminal law, a person sentenced has a right to know on which legal grounds
o nulla poena sine lege (no punishment without law)
2.) Economic function
o Cross boarder trade and money transactions demand uniform regulations
o Codification in the form of EU legislation would be an example
3.) Political function
o An important way to strengthen national unity
o A new civil code often forms out of political pressure, often after war (civil or world.)
INTERPRETATION
Written codes of law need to be interpreted, only through interpretation do they gain meaning or validity. Every text is by nature
open to multiple interpretations, and ultimately there are as many ‘meanings’ of a text as there are people. It is the diversity of
people and not the text that creates a multitude of interpretations. In a codified society this relationship is formalised; there is an
official authoritative author which is the legislator and there is an official authoritative interpreter of the text which is the judge.
Allot of legal codes in Europe are not very old, the key to their continued modern outlook is interpretation.
o The legislator needs to aim for clarity
>Needs to avoid synonyms (word or phrase that means
exactly or almost the same as another word/phrase.)
>Needs to avoid flowery expressions
o In the period of enlightenment people believed that
they could make laws so clear and complete that
interpretation would not be necessary. This was part
of the motivation for codification: that a judge would
only need to open the book and read the appropriate
law.
Montesquieu: the judges only task would be to be ‘the mouth
of the law.’
Historically the legislator tried to retain grip over laws:
LEGISLATOR 1.) The legislator provided an authoritative explanation
authentic interpretation of the law- but ultimately
these explanations also need to be interpreted.
2.) Total ban on any comment on the code of law
3.) Judge is forced to ask the legislator for an
explanation
4.) Construct a code so clear that comprehensibility is
possible by every man on the street.
o The legislator is obliged to create the best possible
code of the law.
>Clear and comprehensible
>Systematically ordered articles
,Week 1- legal history- summaries
o The legislators’ powers are limited, he can issue laws,
but he has no control over their future explanation.
The final word lies with the interpreter (judge), he is
the one that decides the content of the legal rule
aided by his knowledge and insights.
o If the legislator does not like a judicial interpretation
he can only react by creating a new provision that
expresses his intent more clearly.
Methods of interpretation
Intrinsic (internal)
Grammatical interpretation- The meaning of the words in
daily usage is what is taken into account (eg a dog is a 4-
JUDGE legged animal, not a hot dog.)
Extrinsic (external→beyond the words.)
Historical interpretation- Try to determine what the legislator
meant when the provision was written.
Legal historical interpretation- looks at the origin of the
particular rule eg from Roman Law in order to interpret it.
Systematic interpretation- looks at how the rule fits into the
system of law by looking at other rules
Analogy- The rule is not applicable to the case at hand, but is
still applied because this case looks like the case that is covered
by the rule
Teleological- the objective/goal/purpose of the rule is taken
into account
oNo particular choice of interpretation is mandatory,
the judge is free to choose whichever method he
prefers(unlimited.)
o However, the judge may never refuse to pass
judgement or he will risk prosecution on account of
denial of justice (Lex semper laquitur→ the law
always speaks.)
o A judge, although completely free in interpretation, is
more a less bound by the decisions of the higher
courts since otherwise he is likely to have his decision
appealed anyways.
o It is the application of the law itself that is subject to
supervision, as a rule this means that the facts are not
debated in the decisions of the higher courts.
o Sometimes the explanations of judges also need to be
explained better by legal scholars in the form of
commentary of a judgement.
o A judge may not just change the meaning of the text
arbitrarily, it must be justified.
o The judge only has these powers in private law, in
criminal law interpretation is much more restricted
(the seminar teacher said grammatical interpretation
only.)
EXAMPLES:
,Week 1- legal history- summaries
1.) Under the University Statute a PHD ceremony
should take an hour, but the judge later interpreted
that one hour can also mean 45 minutes
2.) In criminal law the phrase ‘he who’ has also been
interpreted to include women.
o Codification
o Judge can only provide explanation for legal texts
o The legal text cannot be altered by a judge but they
can alter the entire meaning of the words
CONTINENTAL SYSTEM o Can arrive at a new ‘law’ by interpreting the same text
Dutch in a different way, however this cannot be
unconventional and has to be justified.
o If a party does not like an interpretation it can ask
for a new one by a higher authority, ultimately the
supreme court gives the final interpretation (Hoge
Raad in the Hague.)
o The judge is not a source of law
No codification o
The judge may only use the traditional explanation of
o
the words from the English dictionary
o If the legal text does not say anything, or does not say
enough he will put it aside and judge independently
o He is not an interpreter but a mini legislator.
ANGLO-AMERICAN SYSTEM o Stare decisis (precedents) guarantees the uniformity
of the law in England, the judge will need to make
interpretations when assessing precedents, but he has
the authority to issue an independent new rule if in
his opinion no precedence is available.
o The judge is a source of law
ADVANTAGES/DISADVANTAGES OF THE UNLIMITED INTERPRETATION OF CONTINENTAL JUDGES
>Unlimited interpretation means that the meaning of the law
does not become fixed, but is always adapting to the period
ADVANTAGE and the circumstances.
>A historical outdated text can function as the foundations
for living law
>The law does not age, it remains forever young
>Unlimited interpretation means that the judge can explain
the text according to the political opinion at the time, however
DISADVANTAGE nasty that might be
EXAMPLE: German civil code in the 1930s was used to
support Nazis without any change to the text itself
LAWYERS
Lawyers also interpret the law; a lawyer will give a certain interpretation to a legal text. However, a lawyer has to wait to see how
the judge will interpret the text, weather he will accept his personal explanation or not. Therefore, a lawyer’s interpretation has no
authority.
TENSION BEHIND POWERS
Interpretation creates a tension between the powers of the legislator and judiciary. The legislator, as already mentioned, historically
has wanted to retain its grip on the law. Often judges may reach a decision that the legislator does not like, or alternatively when
the legislator dies the judge interprets the law as he sees fit due to the separation of powers the legislator cannot influence the
judiciary (Montesquieu.)
,Week 1- legal history- summaries
Trias politica
Judiciary
Legislature
Executive (government)
NATURAL LAW
HISTORY OF NATURAL LAW
Epicureanism (positivist) Stoicism (natural law)
> Believe that man is brutal >Marcus Cicero
and lazy but also intelligent Didn’t like the formal
and does not strive for the concept of law, because it
GREEKS: WHAT IS LAW? inevitable state of war of ‘all suggested that if the
against all.’ government said you could
Philosophers asked themselves this question > In accordance with the steal, then you could steal,
natural laziness of man which but theft is never justifiable.
makes him seek peace and >Believe that the term law is
avoid conflict, man will not just about what a random
submit himself voluntarily government authority
accepted by all the people as prescribes.
well as to its rules. >Law is about the fairness of
>Thus, law is connected to its contents
an authority. Therefore, only >God given reason
law given by authority is (rationality) prescribes to
recognised. man what the law is
>Law is what is prescribed >Law is a natural fact that
and enforced by you can find by reasoning
governmental bodies that are within yourself.
authorised to legislate >The stoic concept of law is
>when establishing the material in nature: it is all
content of its rules the about the contents of the law
government is led by utility. achieved through human
> The Epicurean concept of reasoning.
law is formal in nature: it is
all about the fact that an
authoritative source labelled
it as law.
o ‘Every people that is governed by statutes and
customs observes partly his own peculiar law and
partly the common law of all mankind’
o Ius civile (civil law- established by people themselves)
o Ius gentium, law of nations and observed by all of
mankind (eg if you buy something you have to pay
ROMANS: GAIUS I the price)
The practical peoples o Ius naturale is what nature teaches us: comes from
being a human being.
o Essentially, he divided it into three schools of
thought, they are all different.
o Slavery for example is not Ius civile because everyone
has slaves, it is part of Ius gentium it is not just the
romans that use saves. The question then becomes is
it also part of Ius naturale? No: nature teaches us that
every creature is born free.
,Week 1- legal history- summaries
o Romans weren’t interested in philosophising and
asking questions about fairness of slavery and the fact
that it is contradictory to the rules of natural law,
they can see it, but they just take a practical point of
view.
o They therefore did not favour one form of law over
another as such, they weren’t interested in assessing
stuff in the same way as the Greeks.
o Roman Catholic church was dominant
MIDDLE AGES o Distinction between ius civile and ius gentium lost
(stoic) meaning due to codification in the Code of Justinian
o The corpus ius civiles was a combination of Roman
law and local customs.
o The corpus iuris canonici was a medieval collection
of ecclesiastical law, ius naturale was thus placed
above custom and even positive law.
o Ius naturale was understood as a law that had
primacy because it was applicable everywhere and at
Divine law all times, bough to mankind by god.
o Natural law puts aside unfair or unjust forms of
man- made law, for example Justinian’s statute
against incest.
Written-bible Man Made law Unwritten-natural
Ecclesiastical (church) Secular(not bound by church)
Corpus iuris canonici
Natural law
Written Unwritten-
Corpus iuris civilis Customary
ENLGHTENMENT ERA 1776- The American Declaration of Independence
(stoic apart from opposition Rosseau) o Prior to the enlightenment period the British had
owned the 13 American colonies, after the defeat of
France whom they were constantly at war with.
o The enlightenment period bought about a new way
of thinking ‘enlightenment is man’s emergence from
his self-imposed immaturity.’
o Thomas Jefferson: main man and future president
behind the ‘declaration of Independence.’
o Nowhere in any law or code of law is the right to the
pursuit of happiness mentioned
o It is mentioned in the declaration that these rights are
self-evident, they therefore do not have to be ratified
by a special legislator of judiciary, they are still valid
without ratification.
,Week 1- legal history- summaries
o Jefferson based his Declaration of independence on
natural law, these are the fundamental rights of man,
they flow from us.
‘All men are created equal and they are endowed by their o The first revolution in modern history that was based
creator with certain inalienable rights: that amongst these are purely on the principles of natural law
life, liberty and the pursuit of happiness.’ The age of reason
o The enlightenment area led to the establishing of
enlightened monarchs across Europe, the dominance
of natural law offered the legal justification for
revolution in light of this new mindset.
o Ratio: reasoning came to dominate above the Roman
law
>Frederick II the Great of Prussia
>Josef II of Austria
>Catharina the Great of Russia
Hugo Groitus→ Promotes natural law
Pater iuris naturae (the father of natural law)
o Wrote ‘on the law of war and peace’
o Believed even if there was no god, there would still be
natural law.
o Recognised the independence of natural law from the
will of god.
o He also began to criticise Roman law, showing
contradictions between it and natural law
Rosseau (social contract)→Against natural law
o He believed in the sovereign authority of the
people to legislate
o Every law that has not been approved in person
by the people is absolutely not a law, the
legislative power belongs to the people
o Roman law was never introduced by law and
therefore he believes it has no legal power, the
same as customary law.
o No single government can be the bearer of
sovereignty; that lies only and exclusively with
the people and cannot be transferred by the
people to its government
o One should not know any other authority other
than the laws of the state which should be
unified (codified.)
o This rules out natural law
Vernunftrecht (law of reasoning/rationality)
o Constructs of natural law based purely on reason
o Rationalist approach to natural law free from Roman
law, first promoted by Grotius
o Very popular in Germany
o Human nature itself derived these obligations and
rights
o These teachers taught an ideal, intellectual law. They
taught the law not as it was (Roman law and its
corpus iuris) which is ius constitutum but the law as
it ought to be ius constituendum
o Total victory of natural law over Roman law
,Week 1- legal history- summaries
Pufendorf, Thomasius, Wolff
o Could be argued that since natural laws are a
presupposed unwritten set of rules that exist
independent of human beings and as Grotius points
out, independent of God even, they do not need to
Natural law and codification be codified in law to validate them but they really
wanted to be part of the movement.
o lawyers of natural law stressed the need for a
codification
Why?
o Montesquieu 1748: he wrote about local factors that
influence law. The natural rights of people according
totheir special circumstance (everywhere you go the
religion, climate and language is different.)
Codification is necessary so that natural law is the
same for everyone and local factors are harmonised.
o Intellectual economy: read result of applying ratio in
book, rather than start reasoning yourself.
o Cesare Beccaria: you need to have legislation in place,
only after can you punish people. This also heped the
argument for codification.
Attempted codification: Prussian code (German empire)
Codes still valid today: French Civil Code (1804)
Austrian code(1811.)
o It is difficult to think of law as something
superhuman and everlasting as natural law encourages
us to
o In the 19th and 20th century the natural law way of
20th CENTURY AND NATURAL LAW thinking once again had to make way for a positivist
one
o Radbruch was a legal positivist philosopher who
believed in the formal concept of law, however after
Nazi Germany he rethought his ideas on law, after all
hitler had been elected formally in a proper way.
o Radbruches formula: very similar to stoics point of
view: where statutory law is incompatible with justice
it must be disregarded by a judge in favour of the
justice principle
o This formula allows for constitutional review by the
supreme court (judge has authority to test rights
against human rights.)
o Things such as the ECrHR reflect natural law in
some of their articles/judgements
ASSIGNMENT: A STRANGE STORY: THE PEOPLE V OADES
This is actually a fake story invested by a journalist to illustrate the issues with the new California Civil Code (David Dudley
Fields.) The new civil code of California was introduced in 1872.
Adultery→sexual intercourse between a married person and a person who is not their wife
Bigamy→Marrying someone whilst still married to somebody else
1.) According to this report, three separate trials took place, name these trials
a.) The first trial for the ‘open and notorious cohabitation and adultery’ (under the 1872 code) between Mr Oades and
Mrs Oades 1→ They produced a marriage certificate for Mrs Oades 1 who had been married to him in England 20
years ago (before the New Zealand episode.) They were acquitted of this charge.
, Week 1- legal history- summaries
b.) A second trial for the ‘open and notorious cohabitation and adultery’ (under the 1872 code) against Oades and Mrs
Oades 2→Mr Oades proved that he was married legally to the second wife too, because the first wife had been
absent for more than 5 successive years→ complaint was dismissed.
c.) The trial for bigamy (the offense of marrying someone whilst still married to someone else)→ The Penal Code
expressly provides that no person shall be held guilty of bigamy whose husband or wife has been absent for five
successive years prior to the second marriage→ acquitted.
2.) Explain in your own words which legal problems could apparently not be solved to everyone’s satisfaction under
Californian law
a.) The only method of annulling the marriage (of the second wife) is for action to be bought forward by one of the
parties to the second marriage or by one of the parties to the first marriage. Neither Oades or either of his wives were
willing to bring the suit.
b.) The people petitioned the legislator to pass an act dissolving Oades 2nd marriage→but Oades read from the
Constitution of California that provides that ‘no divorce shall be granted by the legislature.’
c.) The people then petitioned the legislature to therefore write a new constitution so that one of the marriages could be
annulled→ Oades then read from the constitution of the USA that ‘no state shall pass a law impairing the obligation
of contracts and marriage’
d.) Nothing short of an amendment to the constitution of the United States could solve this case.
e.) It was suggested that Oades be hanged and so he left
3.) Try to come up with some solutions that the legislature should use to solve such problems
There are many ways that the legislator could fix this problem. For example, the marriage could be automatically annulled
once the wife goes missing. Under Dutch law if you marry again then the first marriage is null and void automatically. A more
radical view could be tht remarrying is totally prohibited. The rest of America does not have this problem, they are ruled by
common law which establishes that once the first wife turns out to be alive, the second marriage is automatically annulled.
4.) Which provision of Californian law exactly forms in this case an obstacle for a solution that would prevent bigamy as
much as possible?
Second sub division of the eighty third section of the civil code that states that an action for annulment of such a marriage
where the former husband or wife is found to be living can only be bought by one of the parties to either the first or second
marriage. This is an issue if none of the parties are willing to file a suit.
5.) In a more general way this case presents a problem that is present in the application of any rule of law. Explain which
problem this is and which actors express it.
The problem is the way in which judges/advocates interpret the law from the code.
Mr Cokeman (district attorney)→ argues that the law is to be construed according to its spirit and intent and the
language where contrary thereto was to be disregarded. The law he argued had the purpose to provide against the
illegitimacy of children from the second marriage and was not intended to make bigamy lawful
The counsel for the accused→ believes we must stick to the letter of the law and what it actually says. It is wrongly called
interpretation when we alter the text.
6.) Can you find a solution for the dilemma aced in these three cases (all of which are criminal)
The seminar leader says no, it is not possible to find a solution, because where it is a criminal case you cannot interpret
extensively you can only use grammatical interpretation and thus we must stick to the letter of the law since all three of
the charges against him are criminal ones.
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