Law

2013 ◽  
Author(s):  
Thomas Kuehn
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
Roman Law ◽  
European Continent ◽  
14Th Century ◽  
Charles I ◽  
Legal Traditions ◽  
The Common ◽  
Local Courts ◽  
Medieval Universities

The period between the mid-14th and the mid-17th centuries saw the consolidation of both major European legal traditions. One was based on Roman and canon law and held sway as a common law (ius commune) on much of the European Continent. The other was rooted in royal writs and judgments that constituted the “common law” of England. The Romano-canonical law was based on venerable texts, chiefly those of the Corpus iuris civilis, compiled at the behest of the Emperor Justinian in the early 6th century, and the Corpus iuris canonici, assembled in the course of the Middle Ages by legal teachers and popes, with the process of assembly ending in the early 14th century. These texts served as the basis for a highly sophisticated and technical education in law in the medieval universities of Italy and southern France, whose graduates spread throughout Europe. The establishment of new universities from the 14th century—in Italy but also spreading to Germany, Spain, and elsewhere—only served to foster the geographical reach of the Romano-canonical law. This was also the point at which the teaching methods in the universities changed from the logical elaboration of authoritative texts (the so-called school of the glossators) in the direction of contemporary issues and practices (the era of the post-glossators and commentators). The greatest exponent of this trend was Bartolus of Sassoferrato (b. 1313–d. 1357), whose influence was such that it was said that to be a jurist was to be a “bartolist” (nemo iurista nisi bartolista) (see Jurisprudence and Legal Methodologies). The English law consisted of royal writs, Parliamentary statutes, customs, and precedents set in courts. These became in some regards increasingly rigid by the 14th and 15th centuries, but flexibility was introduced by means of the Royal Court of Chancery, which drew to some degree on Roman law notions. This was the so-called law of equity. The influence of royal courts and their remedies led to the waning of manorial and other local courts. The trend toward legal centralization in England was further fueled by the Crown’s break with Catholicism. By the 17th century the common law tradition, including much of the intervening developments in equity, served as the bastion of those who would resist the pretensions of the Stuart monarchs, especially Charles I (b. 1600–d. 1649). Developments in the commercial economy of Europe, intellectual and cultural trends, and religious turmoil would all pose problems in areas such as property law, contracts, marital relations and family prerogatives, and judicial procedures, and would call forth adjustments to resolve them.

Scots Law: Mixed from the Very Beginning? A Tale of Two Receptions

2000 ◽  
Vol 4 (1) ◽  
pp. 3-18 ◽  
Author(s):  
WDH Sellar
Keyword(s):  
Middle Ages ◽  
Common Law ◽  
General Meeting ◽  
Roman Law ◽  
Mixed System ◽  
Annual General Meeting ◽  
Ius Commune ◽  
Profound Influence ◽  
Anglo Norman ◽  
Considerable Period

This article is the revised text of the lecture delivered to the Stair Society at its Annual General Meeting in November 1997. It defends the proposition that Scots law, from the time of its emergence in the Middle Ages, has been a “mixed” system, open to the influence of both the English Common Law and the Civilian tradition. It also compares and contrasts the Reception of the Anglo-Norman law with that of Roman law. The former was quite specific as regards both time and substantive legal content. The Reception of Roman law, on the other hand, took place over a considerable period of time, and its effects were complex and diffuse. Above all, the Civilian tradition and the wider ius commune provided an intellectual framework against which to measure Scots law. Both Receptions exercised a profound influence on the continuing development of Scots law.

scholarly journals From Norms to Facts: The Realization of Rights in Common and Civil Private Law

2011 ◽  
Vol 56 (1) ◽  
pp. 77-114 ◽  
Author(s):  
Helge Dedek
Keyword(s):  
Legal System ◽  
Deep Structure ◽  
Common Law ◽  
Social Reality ◽  
Judicial Decision Making ◽  
Legal Traditions ◽  
The United Kingdom ◽  
The Common ◽  
Legal Concepts ◽  
The Ideal

Every legal system that ties judicial decision making to a body of preconceived norms has to face the tension between the normative formulation of the ideal and its approximation in social reality. In the parlance of the common law, it is, more concretely, the remedy that bridges the gap between the ideal and the real, or, rather, between norms and facts. In the common law world—particularly in the United Kingdom and the Commonwealth—a lively discourse has developed around the question of how rights relate to remedies. To the civilian legal scholar—used to thinking within a framework that strictly categorizes terms like substance and procedure, subjective right, action, and execution—the concept of remedy remains a mystery. The lack of “remedy” in the vocabulary of the civil law is more than just a matter of attaching different labels to functional equivalents, it is the expression of a different way of thinking about law. Only if a legal system is capable of satisfactorily transposing the abstract discourse of the law into social reality does the legal machinery fulfill its purpose: due to the pivotal importance of this translational process, the way it is cast in legal concepts thus allows for an insight into the deep structure of a legal culture, and, convergence notwithstanding, the remaining epistemological differences between the legal traditions of the West. A mixed jurisdiction must reflect upon these differences in order to understand its own condition and to define its future course.

scholarly journals Law, Language and the Printing Press in the Reign of Charles I: Explaining the Printing of the Common Law in English

2019 ◽  
Vol 38 (2) ◽  
pp. 339-371
Author(s):  
Ian Williams
Keyword(s):  
Common Law ◽  
Printing Press ◽  
Legal Knowledge ◽  
Charles I ◽  
Professional Control ◽  
History Of ◽  
The Common ◽  
The Law ◽  
Long Term Trend

The printing press had the potential to break the common lawyers' monopoly of legal knowledge. Early-modern England witnessed debates about the desirability of wider dissemination of legal learning. Previous scholarship has identified the long-term trend to increased printing of the law in English, focusing on ideological debates between lawyers and other key actors. Only selected texts and types of material were made available to the wider public before the 1620s. From the later 1620s a wider range of material which had hitherto existed only in manuscript was printed in English. Knowledge of the common law became more commonly available. This article identifies this crucial moment and explains the change. Rather than the ideological questions which are discussed in the existing literature, more mundane causes are identified for the legal profession's reduced control over the transmission of legal knowledge: a shift to the use of English by lawyers themselves, and a loss of professional control over manuscripts. The paper therefore demonstrates an important methodological point: understanding and assessing the history of legal printing requires engagement with older methods of transmitting the law.

Comparative Legal Families and Comparative Legal Traditions

2019 ◽  
pp. 422-441 ◽  
Author(s):  
H. Patrick Glenn
Keyword(s):  
Common Law ◽  
First Century ◽  
Static State ◽  
Legal Traditions ◽  
System A ◽  
Early Twenty ◽  
The World ◽  
Late Twentieth ◽  
The Common ◽  
Legal Normativity

For much of the twentieth century, comparatists have divided the world into ‘legal families’ (such as the civil law, the common law, socialist law, etc.) and assigned each (national) legal system a place in one of them. The chapter argues that this taxonomic enterprise has largely remained at the descriptive state, entailed a misleading division into fixed categories, and that is has failed to produce real comparison between laws. It is also too static, state-centred, and Euro-centric to be workable under conditions of late twentieth and early twenty-first century globalism. It should be replaced by the paradigm of ‘legal traditions’ which not only emphasizes the evolving nature of law, but also avoids dividing the world into clearly separated groupings. Instead, a ‘legal traditions’ approach focuses on the fluidity, interaction, and resulting hybridity of laws, thus facilitating their comparison. As it is not tied to Western-style national legal systems, it can easily capture the laws of the whole world, including the increasingly important non-state forms of legal normativity. Since the chapter was written by the late H. Patrick Glenn over a decade ago, the editors added a postscript bringing the reader up to date on the scholarship on, and the debate about, legal families and traditions.

scholarly journals De la lex scantinia aux récents amendements du Code criminel: homosexualité et droit dans une perspective historique

2005 ◽  
Vol 25 (4) ◽  
pp. 777-800
Author(s):  
Robert Demers
Keyword(s):  
Common Law ◽  
Criminal Code ◽  
Roman Law ◽  
Medieval Period ◽  
Deviant Behaviour ◽  
Individual Behaviour ◽  
Canadian Law ◽  
The Common ◽  
Political Turmoil ◽  
And Control

This paper deals with the legal approach to homosexuality throughout history, focussing on Roman law, French law up to the Revolution, English law till the mid-60's and finally, Canadian law from the French period up to the amendments to the Criminal Code in 1969. What lessons can be drawn from this analysis? A first conclusion is the increasing intolerance towards homosexuals as evidenced by laws that become more and more preoccupied with private morality and control of individual behaviour. Here, we notice the inverse trend in the Roman law tradition and the common law one, where cultural and religious differences explain much of this curious evolution. A second conclusion is the link established between deviant behaviour and all forms of « deviance » from official policies-thus, accusations of homosexuality are to be found in troubled periods of religious (heresies) and political turmoil. Finally, one notes that although the Medieval period is often considered as being particularly cruel in its treatment of homosexuals, this view would need important qualifications in light of the 20th century treatment of such persons, witness of course, the Nazi extermination.

The Canonists and the Mediaeval State

1953 ◽  
Vol 15 (3) ◽  
pp. 378-388 ◽  
Author(s):  
Brian Tierney
Keyword(s):  
Political Theory ◽  
Middle Ages ◽  
Common Law ◽  
Real Life ◽  
Practical Experience ◽  
Raw Material ◽  
Roman Law ◽  
Essential Ingredient ◽  
Legal Studies ◽  
The Middle Ages

Maitland once observed that, in the Middle Ages, “Law was the point where life and logic met.” This aphorism of the master must serve as my apology for including in one essay two topics so diverse, according to some opinions, as abstract political theory and concrete constitutional problems. It may be that the mediaeval jurists can provide a link between the two spheres, for their reflections on mediaeval government were not mere philosophical abstractions. They were rooted in real life. An essential ingredient of the jurists' raw material was a practical experience of the workings of mediaeval society. It is not surprising, therefore, that eminent historians on both sides of the Atlantic have called attention to the need for legal studies as a basis for further advance in mediaeval constitutional research, and that, in recent years, we have heard a great deal about the importance of feudal law and folk law, of Roman law and English common law in the formation of mediaeval ideas and institutions. My task will be to state briefly the case for the canonists.

scholarly journals CIVIL LAW JURISDICTIONS AND THE ENGLISH TRUST IDEA: LOST IN TRANSLATION?

2012 ◽  
Vol 20 (1) ◽  
pp. 173-183 ◽  
Author(s):  
James Sheedy
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Roman Law ◽  
Short Discussion ◽  
Personal Rights ◽  
The Common ◽  
Lost In Translation

This piece is a short discussion on the English; and more widely the common law concept of the trust and its traditional exclusion from civil law systems.  It seeks to unearth that the apparent distaste civil law systems have for the common law trust is rooted in each system’s respective attitude to rights in property and at least some degree of mistranslation.  This apparent gulf in understanding can be bridged by incorporating the trust into the more ancient Roman law concept of the patrimony, thereby making the trust sit more comfortably in civil law jurisdictions.  In bridging the divide, this new appreciation for the trust challenges us as common lawyers to reconsider the traditional common law premise of the trust as being less about proprietary interest as it is about personal rights and obligations.

scholarly journals BARKING UP THE WRONG TREE ‒ THE ACTIO DE PAUPERIE REVISITED Van Meyeren v Cloete (636/2019) [2020] ZASCA 100 (11 September 2020)

Obiter ◽  
2021 ◽  
Vol 42 (3) ◽  
Author(s):  
André Mukheibir
Keyword(s):  
South African ◽  
Common Law ◽  
Strict Liability ◽  
Third Party ◽  
Roman Law ◽  
The South ◽  
The Supreme Court ◽  
Pain And Suffering ◽  
The Common ◽  
Law Of Delict

It is trite that the South African law of delict follows a generalising approach. This entails that liability will only ensue when all the elements of delict are present. South African law does not recognise individual “delicts”. The generalising approach followed in South African law is qualified in that there are three main delictual actions, namely the actio legis Aquiliae for patrimonial loss; the actio inuriarum for loss arising from intentional infringements of personality rights; and the Germanic action for pain and suffering, in terms of which a plaintiff can claim compensation for negligent infringements of the physical-mental integrity. This approach is further qualified in that numerous actions dating back to Roman law still exist in our law today. Included in this mix are the actions for harm caused by animals, such as the actio de pauperie, the actio de pastu, and the actio de feris, each with its own requirements. There have been questions as to whether these actions, in particular the actio de pauperie, still form part of South African law. In Loriza Brahman v Dippenaar (2002 (2) SA 477 (SCA) 487) the defendant claimed that the actio was no longer part of the South African law. The Supreme Court of Appeal (SCA) per Olivier JA held that the actio de pauperie had been part of South African law for more than 24 centuries and not fallen into disuse. Olivier JA held that the fact that the action is based on strict liability (one of the arguments raised against it) is no reason to ban it from South African law as strict liability was increasing and in suitable instances fulfils a useful function.The SCA, again, recently confirmed the continued existence of the action in South African law in the case of Van Meyeren v Cloete ((636/2019) [2020] ZASCA 100 (11 September 2020) 40). In this case, the SCA had to decide whether to extend the defences against liability in terms of the actio de pauperie to the negligence of a third party that was not in control of the animal. The defendant held that the court should develop the common law in this regard. Considering both case law and the requirements for the development of the common law, the SCA held that such an extension could not be justified.

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