Appunti esame History of Western Legal Tradition

History of Western Legal Tradition

Introduction

Why and how legal history can contribute to the training of the law student. The concept of historicity. Understanding different legal contexts. Legal history can contribute to legal education.

How can legal history be useful?

Law and the historical view of law are related with complexity. Law is something complex, in the sense that we require a set of different perspectives, crossing them in order to address a unique matter. We will select some basic categories to focus our attention on historical crossroads. Legal phenomena in the Western Legal Tradition provide information needed to understand the historical roots of both civil and common law. Generally, we distinguish between:

• Civil Law, Roman Law based
• Common Law

History offers us the opportunity to widen our knowledge. Why should we study WLT? Why can legal history contribute to the training of the law student? There are at least three ‘simple’ reasons: can a law student ignore the roots and developments of his/her own legal tradition?

Reasons to study legal history

1. A cultural reason: Law students and legal professionals require a legal culture. Only whose foundations were established by Greek philosophers, (nomos, ius) philosophy (logos), medicine, and law share such a long tradition. Jurists must be proud of this origin and of this rich heritage. Tradition is essential. When we speak about it, we refer to a long period of time, different layers which stratified all over the time. For a law student, studying legal history is a way to start to build up a real legal culture. Let us not forget that law, before being a technique, is a vision of the world, a mentality. Legal history is very useful to reflect on this vision. When we speak about legal professionals belonging to different fields of law, we refer to someone who elaborates a certain mentality, forming step by step a legal vision. They are influenced by the context in which they operate.

2. A methodological reason: I’d like to recall the metaphor of the point and the line. We can imagine history as a line. A line is composed of a series of points. Each point is a moment, a phase, a period, etc. Methodology → Having strong methodological tools is fundamental. We live in a society which is constantly changing, because of globalization and other aspects. Methodology (an approach) can help to face new changes and challenges. Through Legal History, we have the possibility to understand how societies developed or declined. We all live for a certain period. Our life is a point. Just as our life, our vision is limited. We have limited historical knowledge. A (‘positive’) lawyer can live and experience directly only a period. You will work as jurists (advocates, judges, legal consultants, professors, etc.) from 2028-2030 to 2075-2080... This is your ‘point’, your period. Compared with the positive jurist, a legal historian has only one privilege: he lives in one ‘point’ of the line but he can move, as he likes, along the line thanks to a specific methodology (he doesn't own a time machine!). Our historical methodology can be our time machine. Thanks to a particular methodology, based on historical resources, we have the possibility to go into the past. By investigating history, we can realize that different societies organized themselves in different ways. An essential instrument of investigation is comparison. Differences must be analyzed. The right historical approach can open our minds. Legal History contributes to offering the correct methodology to move along the line: going back to Romans and Roman Law, to Normans and Common Law, and so on. You can ‘move’ back and forth as you please. From this point of view, Legal History can be seen as a sort of ‘laboratory’ giving the possibility to know, through historical methodology, an extraordinary range of legal phenomena and experiences. In “your point” you can look ‘only’ at some specific and limited legal phenomena, conversely going along the line you can meet, know, and understand a wide series of questions, themes, arguments, etc. It is a way to enlarge and enrich your legal culture and to ‘live’ indirectly many other legal experiences.

3. Legal history is a “space” allowing you to see how during the time human beings and their societies have attempted to find solutions for their problems. Legal History approach can help nowadays positive jurists (and law students) to “relativize” the categories that they use and the related experiences. If today we use some ideas and tools, it doesn't mean it has always been like this. This methodological awareness is none other than the historicity of law.

Historicity of law

1) Law is influenced by history too. Historicity of legal phenomena does mean that legal concepts and experiences change according to the ages and depend on many aspects of natural, political, social, and economic nature. Historicity shows how law changes (or doesn’t change) over time and space according to social, economic, political transformations. "In order to know what [the law] is, we must know what it has been, and what it tends to become." (Judge-of 20th century- Holmes) To understand also the transformations of law, we need to have a historical knowledge. Legal History helps law students to grasp:

• The complexity and breadth (ampiezza) of the legal phenomenon
• Its links and its relationships with reality; Law is not metaphysical. When we study law, we tend to formalize it. The process of formalizing law requires a certain degree of abstraction. However, we cannot forget that law is close-connected with reality and those things which belong to it. Law has always a link with aspects belonging to different dimensions.
• Obviously its historicity, its being in the long duration, the relationship between law and society. Ius est ars (art in Latin is the Greek translation of technique) boni (good) et aequi (just) ➡ Law is first of all a human and a social artifact. (Celsus, ulpian Roman jurist working during II century a.C, the Republic Period) Human beings within a society develop this art, technique, to govern and to exercise power. The community requires rules to govern every kind of action. The notorious Roman sentences state: UBI IUS, IBI SOCIETAS, where there is law, there is society; UBI SOCIETAS, IBI IUS

Three basic aspects of legal history

1) Legal History as one of the pillars of a good legal culture; 2) Legal History: the line and the point; 3) Legal History to develop historicity seen as a lens to read the very complex relations between law and society over the time and space (legal history involves comparison).

In medieval times, starting from Bologna, jurists went back to Roman legal sources. The texts were the same, but the middle age society of course was different. Consequently, if the society is different, the use of those texts will be different too, in order to build up something new. Therefore on the one side we have change and transformation, but on the other tradition. We need some stable handholds. Jurists tend to be conservative. When legislators change laws or codifications, jurists’ approach is supposed to change. However, at the end of the 18th century, Jurists had to face important developments.

Definition challenges

"Western” ➡ It is difficult to identify with certainty what Western legal tradition is. The historically developing culture of the peoples of Western Europe, who from the late eleventh to the early sixteenth century shared common principles and values based on Roman Law and the allegiance to the Roman Catholic papal hierarchy, and who from the sixteenth century to the twentieth century experienced a series of national revolutions, each of which had repercussions throughout Europe; and I include also non-European peoples who eventually were brought within the historically developing Western culture by colonization or, as in the case of Russia, by religious and political and cultural affinity and interchange.

Defining western is an issue. When we reflect about tradition, we deal also with borders, identity. Does it correspond to the Roman law tradition or Common law? Canon law too is part of the western legal tradition. We cannot entirely understand western legal tradition without taking into account all the categories belonging to it. Tradition refers to the duration and continuity between the past and future. The word tradition comes from the Latin TRADERE: to give someone something. There is a relationship which binds different generations. Every society and legal tradition has its own roots, which cannot be left behind. It is true saying that our origins ground in the Roman legal experience. However, is it enough? We have to qualify some historical passages, changes. Tradition is not a block, something fixed, it’s an interchange. However, it is possible that during the transmission something will change.

Core idea of western legal tradition

The core idea of western legal tradition is the idea of developing legal thought through a scientific approach. Some basic ingredients: The conception of legal science, of law as a body of knowledge found in authoritative books, is a major and indispensable part of Western law, that is, of the Western legal tradition, which encompasses diverse legal orders and diverse legal systems. A second major ingredient is the method of analysis which was applied to the ancient texts (Gloss, Comment, legal philology, ermeneutics, etc.). Scienza iuris, once again Romans used the category legal science. Starting from the Republic Era, jurists played a creative function. Legal science is another aspect which characterizes the idea of western legal tradition.

Origins of WLT

When does WLT originate? We can give different answers to this question depending on our point of view. For many, WLT origins from Roman Law sources and beliefs; for others, it origins from the twelfth-century vision of what was called at the time the Gregorian (Papal) Reformation (1075) (Harold J. Berman); or from the so-called ‘renaissance of law’ in Bologna (end of XI-XII c.); or the birth of common law system in England... The eighteenth-century English political philosopher and statesman Edmund Burke argued that "Europe is virtually one great State having the same basis of general law. The whole of the polity and economy of Europe has been derived from the same sources."

Lesson II: Key word: CUSTOM

In the past, people and societies used to live according to customs and mores. For some centuries, Romans lived first of all according to their customs. In general, custom is a word which gives us the idea that our behaviors and habits can produce legal effects. It is a sort of dress. In a Customary Legal Order, legal science (the idea of a scientific elaboration) is very limited. The main idea is that Elders know the ancient tradition and customs and they transfer them to their successors. They do not need a “legal science” but only elders who know the ancient traditions and customs. We can also look to the anthropological approach: anthropologists today study Customary Legal Orders. They discovered that in certain societies customs were dominant.

The Roman legal experience shows the evolution of a society starting from customs, to a discourse, a more complex scientific approach, thanks to the work of jurists. During the time, Romans developed, thanks to their jurists a scientific approach and they looked at the other population (Romans built up their Empire step by step according to the necessity rising from the relationships with other populations). After their scientific elaboration of law, Romans started to look at other cultures, customs, uses, and other things of the population they came into contact with.

For example, Julius Caesar on the Commentarii de bello gallico (58-52 A.C.), where he tells about the conquest of the Galls. Reading these passages we realize how a Roman leader (at the end of the Republic experience) looked at the German customs. Tacitus (n. 55-58 A.C.), one of the most important Roman historians (the main historian of Augustus), wrote the De Origine et situ Germanorum, a close anthropological study, where he analyzes and compares the Roman and German customs, mentality, and their approach to social life. Talking about the “Germans” Tacitus showed a trustful attitude toward their customs, whereas, on the other hand, he stated that Roman mores were going towards a process of corruption. In the Roman period a lot of witnesses about these topics were produced, as well as in the middle ages.

The decline of the western Roman empire signaled the beginning of the early middle ages. This period, which covered 5 centuries, was the most important for customary law in European history. Folklaw in European history started to be felt. The customary dimension nowadays is very limited. In particular, there are some contexts of the legal order, the so-called uses and costumes. In this type of legal order (customary legal order), law is not considered to be something that is consciously and systematically and continuously made and remade by central authorities. There is the idea that customs belong to people and the people live according to them, by transmitting them to next generations. Customs belong to people and people live them. In some cases, customs were written down, but in general, the main dimension is the oral one. We tend to identify law in written terms. Before Christianity, the majority of the population were illiterate. The relationship with Romans and then with Christianity started to change the contemporary world. The notions we have today about that time, including customs, derive from the work of monks or a few people able to write. Customary legal order is characterized by a stratification of customs, with an approach which is not systematic. There may be occasional legislation, but for the most part, law is considered to be something that grows out of the patterns and norms of behavior, the folkways and the mores, of the community. Moreover, in this type of legal order, custom is not subjected to conscious, systematic, and continuous rational scrutiny by jurists.

Personality of law

Another category is that of personality of law. In general, we distinguish between two kinds of organization of law:

• Personality
• Territoriality

Today we live in a territorial law regime, the idea that a legal order is territorial. It depends on the land where we live. This has become the dominant idea of conceiving law, developing further with the birth of the modern states. Modern States strengthened this idea of territoriality. Personality of the law is different. It refers to a law, which overcomes the borders and it’s based on a mixture of customs, cultures, and so on. Personality of the law: customs as a «personal heritage» belonging to the community (people, clan, etc.). Customary legal orders usually ground on the concept of personality. But how to grasp the differences between customs within a personal legal order?

The legal orders of all these peoples (Franks, Alemanes, Visigoths, Ostrogoths, Lombards, Burgundians, the Angles, Saxons, Jutes, Celts, Britons, and other peoples of what later became England; the Norsemen of Scandinavia and later of Normandy, Sicily, and elsewhere; and many, many others people) were largely independent of each other nevertheless remarkably similar. The basic legal unit within the tribe (small groups of people, guided by leaders) was the household, a community of comradeship and trust based partly on kinship and partly on oaths of mutual protection and service. Violation of the peace of the household by an outsider would lead to retaliation in the form of blood-feud or else to intra-household or inter-clan negotiations designed to forestall or compose blood-feud. Peace was one of the main purposes within tribes.

After the end of the western Roman empire, the Ostrogoths founded a kingdom, which encompassed the majority of territories which were previously under the control of the Western Roman Empire. At that time European populations basically lived according to their customs. They started to fight and to seek links to the Romans. The greatest issue for Romans was to guarantee the control of the borders of the Empire, where a strong pressure was exercised. This eventually represented the cause of their decline. They tried to manage the situation, but they were not able to face it. The people themselves, in their public assemblies, legislated and judged; and when kings asserted their authority over the law it was chiefly to guide the custom and the legal consciousness of the people, not to re-make it. The bonds of kinship, of lordship units, and of territorial communities were the law. If those bonds were violated, the initial response was to seek vengeance, but vengeance was supposed to give way—and usually did—to negotiation for pecuniary sanctions and to reconciliation. The first Kingdoms started to emerge. In some cases, customs started to be written down.

Romans started in the 6th/5th century BC to write down their mores. This shows us that it is a typical dynamic: ORAL ELABORATION-TRANSMISSION-WRITING DOWN. An example is offered by Longboards, who were nomads. Crossing the Hungarian plains, they came to Italy. Between the second half of the 6th century and the end of the 7th century, Italy was divided into two main ruling systems:

• The Longboard Kingdom
• The Byzantine Empire

This population started to use a vulgarization of Latin to write down legal documents. The first collection of customary law is characterized by a mixture of German words and Latin. Did these populations use Roman law? They used Roman law in a limited and fragmentary way. Their legal dimension was based on customary law. The “Celtic and German peoples” did not have any legal science, nor did they develop any after they had been conquered. They wanted to keep their tradition and probably only Christianity started to change their mentality. When they came into contact with Christianity, a change occurred. In particular, France began to embrace this evolution...