Notes Modules – Global Legal History
Semester 2 (2023)
Introduction week
Introduction video
General concepts of the course:
Global history: surpass (1) nation states and (2) problematize euro-centric
view and tries to explain the history of law from multiple perspectives
Law is not strictly dogmatic or monolithic, but plural and ever-changing law
is a blend and not one single system
Broaden the view to the social, cultural, and economic context of legal
systems
comparison, connection, and a critical attitude are necessary
Lecture 31/1
History is the way in which we interpret those events that happened in the past
Leopold von Ranke was a German scientist who was one of the first to innovate
history by using the method of source criticism + the inventor of seminar teaching
Primary sources = sources written at the time the event took place
Secondary sources are using primary sources to interpret history —> ‘doing’
history produces secondary sources
General developments 19th century
Narrow political focus —> nationalism
Whig history = teleological or goal-oriented
Fernand Braudel
French ‘annals’ school
Study of the longue puree = history in multiple layers
1. Le temps géographique —> the world in which a person lives has a concrete
impact on the outcome of history (climate, wind, harvest, geographical
structures) —> take those into context to understand history
2. Le temps social
3. Le temps individual (histoire événementielle)
More recent developments
60s and 70s ‘new’ social history seeks to study the experiences of ordinary
people in the past
80s 90s cultural turn leads to new topics (gender, postcolonial studies, etc.)
Using social science methods in studying history, emphasis on quantitative
methods
80s: world history —> studying global perspective, common patterns across all
cultures
Jacques le Goff ‘Must we divide history into periods?’
‘While it is indeed necessary to divide history into periods, Le Goff maintains, the
meaningful continuities of human development only become clear when historians
adopt a long perspective. Genuine revolutions the shifts that signal the end of one
period at the beginning of the next - are much rarer than we thin
Module 1 – Roman Law
,KC 1 – Civitas
Rome was founded in the 7th or 8th century BCE: Latin tribes living along the Tiber
River under Etruscan influence
Patriarchal society pater potestas: family and clients were quasi-property of
these senior men
Two main tribes/classes: the patricians and the plebeians
King (rex) wielding supreme power (imperium)
Council of elders (senate?)
This ended in civil strife: 509 BCE the Latin patricians rebelled and established the
Roman Republic and Rex became a taboo in Rome
The early republic
509 BCE Imperium was given to two Consuls, who held a mutual veto power
- One-year term, appointed by vote from among the patricians
- Other magistrates: praetors (judicial), censors (lands, census, and votes),
aediles (buildings and public works), quaestors (treasurer), tribunes
(representatives), etc.
usually always two or more, originally only patricians, later plebeians as
well
The senate: senators appointed for life (by the censors, usually former
magistrates) Rome was called Senatus Populusque Romanus or SPQR
Structure of society: Patricians rules as aristocracy, plebians as lower class
- The Law of the XII Tables (450 BCE): The first Lex
- Plebeian tribunes: officials who could draft plebiscites (plebiscita)
The late republic
During the 3rd century BCE, Rome became a Mediterranean power (an
empire)
- Punic wars 246 – 201 BCE: Defeat of Carthage
Roman law developed around the judicial officials and legal experts
- Preator urbanus: was in charge of administering justice within Rome (367
BCE), preator peregrinus, was responsible for administration of justice in
the larger areas of the empire (242 BCE)
- The rise of jurists (iuris consultus, jurisprudentes) = individuals who were
well-versed in law and legal practice
- The birth of institutionalized legal education
Roman civil law led to a vast collection of learned legal opinions, debates and
perspectives arising from the practice of litigation and mediation: the foundation that
gave rise to the concept, principles and practices of Western law
The Roman Empire
49 BCE: Caesar’s civil war 44 BCE: the ides of March 27 BCE: Augustus
imperator
- The emperor as princeps = ‘principate’
Roman law became more codified and institutionalized
- Expansion of citizenship and ius civile throughout the empire
- Attempts by the Empire to restrict the jurisprudents (not very successful)
Division between Western and Eastern Rome around 285/395 CE
Emperor as dominus = ‘Dominate’ more absolute role
, The Christianization of Rome in the 4th century (313 CE/380 CE): Christian
Europe was born from the roman empire
The legacy of Rome
In 467, Odoacer of the Germanic tribes forced Romulus Augustulus to
abdicate The ‘fall’ of Western Rome
The Byzantine Empire lasted until 1453, when conquered by Mehmed II
- Justinian I: Corpus Iuris Civilis (534 CE)
The Papacy and Catholic Church remain till the present
The Holy Roman Empire: 800 CE – 1806 CE (Charlemagne to Bonaparte)
Roman law remained embedded in European customary and common law
- E.g., Lex Romana Visigothorum, Catholic canon law, customs of Paris, etc.
- Corpus Iuris Civilis ‘rediscovered’ ca 1088
- Ius commune
KC 2 – Law in Action / Ius
Archaic Rome (the Roman kingdom)
In the original Kingdom, law was closely related to religion and rites (often
unwritten tribal customs of patricians (mos))
Resolution of private conflicts by priests (pontifex)
- Formal legal causes of action/rituals: legis actiones
o Highly formalistic predetermined to the letter
o Often verbal, need of witnesses (e.g., the Mancipatio action which
was a formal public sales process about animals and land)
The law of the XII Tables contained also procedural rules
- E.g., summons and the obligation to appear in court (Table I)
- Eventually the right to interpret the law passed from the clergy to lay
aristocracy
, The Ius Civile (the civil law of Rome)
Around 367, the first Praetor was nominated (magistratus majore, curulis, held
imperium (though consuls had veto))
Legal procedure: the “Formulary Procedure”
1. In iure
o Praetor decided whether the matter was admissible, and under
which action kind of preliminary hearing
o If yes, the preator appointed the Iudex = the actual judge who would
decide the case (from among eminent citizens)
2. Apud iudicem
o The iudex examined the facts of the case: hearing, evidence, etc.
o Then the iudex applied the formula given by the preator
Compare: jury trial, arbitration compromise, oyer et terminer, namndeman trial
Preator began to distinguish rules form the facts of a case:
- Rule: if A = true, then B, else C
- Facts: A = true
- Conclusion: therefore B
Ius Gentium
Ius gentium = law of the gentes/nations/tribes/peoples
Ulpian, Dig 11-6: ius gentium = the law of nations, is that which all human
peoples observe…
The romans developed ius gentium as they interacted with neighbours and
later ruled their diverse empire action legis did not apply to non-Romans
Praetor peregrinus (241 BCE)
- Began to develop and establish legal practices based on mediation,
practical experience, and abstract reasoning
- Began to treat and discuss law in natural language
new disputes, cases and costumes could form new law
Further developments
1. The praetors (esp. peregrinus) began to express formulas in free language
2. Before elections, candidates would publish at the agora lists of formulas that
they promised to uphold (Praetor’s edict)
3. Copy-paste: Edicts often retained useful formulas and discarded others
4. Repetition retention of normative function
this was repeated for some 400/500 years
An evolutionary algorithm for the selection of normative information
1. Import formulas from previous edicts
2. Examine formula
3. If formula is good, then save else delete
4. Repeat for all formulas
5. Insert new formulas
6. Publish edict
7. Wait for 1 year, then start over
Jurisprudence
Accumulated experience in legal matters legal expertise, authority
A new group of intellectuals: iuris consultus/jurisprudentes
