Studies in European Legalism
and the origins of European Legalism: legalism in public
and the common law compared)
The Heroic period – formation of Roman law - Late Republic, Early Principate
The classical period – consolidating the foundations
Roman law becomes regulatory – the transformation of legalism
The Corpus Iuris Civilis – the apex of Roman jurisprudence
The origins of legalism: comparison of Roman law and the common law
Failure of Legalism in Roman law; ius publicum, control of the executive power – comparison with the common law
Roman law and its legacy to legalism
Custom and Roman Law in Medieval Europe Codification and Roman law
The legacy of Roman Law and the common law
Codes, Statutes and the autonomy of legalism
is the central legal order of the western legal tradition. The common theme in
these essays concerns its nature and historical development.
Legalism is the central legal order of the western legal tradition. The common theme in these essays concerns its nature and historical development.
Legalism may be contrasted with the two other legal orders to which most legal systems belong. The custom-mediatory order is typical of pre-state societies in which custom is relied upon for the social rules governing society. In this legal order mediation, or failing that, self-redress are the means by which disputes are resolved. In the regulatory legal order, law is essentially public and bureaucratic. It was the legal order governing the law in the ancient middle-eastern empires and in China and India before European contact. In those societies, law comprises a series of commands dictated by the state, sometimes in a code, statute or other decree. These are discrete in the sense that there is no logical connection between the various commands.
The first essay, The nature of legalism, describes legalism and contrasts it with the other legal orders I have mentioned.
western legal tradition is chiefly composed of two great legal systems – the
Roman civil law and the English common law. Both are founded on legalism.
Legalism has since, in one form or another, been transported all over the globe
but its origins are European. This substantially accurate statement needs
qualification. Both Islam and Judaism have used legal science. Each faced the
difficulty of relating a sacred text to new circumstances or to existing
circumstances not specifically covered by the text. And each faced the
difficulty of reconciling the reverence to be accorded the sacred text with
adoption of legal science in its interpretation or exegesis to deal with new or
The essay Roman Law and the origins of Legalism: legalism in public law (Rome and the common law compared) explains this and the development by the jurists and praetors of an independent system of law characteristic of legalism. The element of autonomy in this juristic development was not formalised at the time of the Republic but the authority of the responsa of the jurists and the edicts of the praetors were conceded by the Roman state. In much the same way the Judges of the common law, although deriving their authority from the Crown, were conceded the authority to develop the common law through the doctrine of precedent and, on the continent, the scholars of the universities played a similarly creative role in the transformation of the Roman law of the Digest into the ius commune of continental Europe.
This essay proceeds to describe how it was that legalism which prevailed in Rome during this period gradually became transformed into an explicitly regulatory order under the Dominate.*
This essay also deals with a question of importance – how it was that legalism penetrated public law in England and why it failed to do so in Rome?
This is important because of the part legalism played in England in the emerging concept of the rule of law.
As will appear, legalism involved some degree of separation of those who administered the legal system from the executive organs of government. It will also be apparent that this separation was at all times relative because, except perhaps for the Roman jurisconsults, the English barristers and continental scholars, those who developed European law held official positions within the state and the autonomy allowed all of them in the development of the law represented a concession by the state. But the degree of institutional independence allowed them was nonetheless important to the future development of the European ideal of the rule of law. This was so because it meant a body of rules -- the law-- upon which such an ideal was dependent, could be developed separately from official decrees and regulations.
But the rule of law means more than the separation of the ‘law’ from the decrees and other directions emanating from the executive. It means that in certain circumstances these are subject to and subordinate to the ‘law’.
In the result it was not Roman law either in its original or evolved form which was responsible for the concept of the rule of law.
The idea of ‘law’ as controlling kings or other forms of executive power was Germanic in origin. The fusion of that idea with legalism produced the concept of the rule of law. This fusion was the work of the common law.
The essay examines this. In doing so, it makes a comparison of Roman with the common law in which largely through legalism, though not entirely, executive government became subject to law.
One particular problem which legalism faced is how the legal system in this kind of legal order coped with statutes and codes. On the one hand, these legal instruments are imposed externally to the autonomously created law characteristic of legalism but, on the other, they have acknowledged paramountcy.
The question is therefore the extent to which this externally imposed law is compatible with legalism. The rise of the democratic principle in the 17th and 18th centuries seemed only to accentuate the apparent tension between the paramountcy of statute and the systematic evolution of the common law and civil law. Lex emanating from democratically elected legislatures alone had legitimacy – a legitimacy which judicially evolved law or law derived from doctrine could not rival.
These issues are taken up in the essay, Codes, Statutes and the Autonomy of legalism.
The essay Roman Law and its legacy to legalism describes the central role of Roman law in introducing legalism into continental Europe and the struggle, eventually successful, which continental legalism had in subduing custom. It also describes its subsequent conflict with natural law reason, on the one hand, and nationalism, on the other. Finally, it discusses briefly the influence of Roman law upon the common law in the development of common law legalism.
Reflections on the state of the law – 1949-1989 – a study in the transformation of the common law, isolates the foundations of common law legalism during the classical period of the 19th century and, covering my own experience over the last half century, describes the decline of legalism due to its inability to cope with fundamental changes in social values. It describes the gradual transformation of the common law to a more regulatory legal order. This is manifested in the increased quantity of legislation whether by enactment or regulation but much more in the kind of legislation. Modern regulatory legislation is based on quite different assumptions to those reflected in 19th century legislation. It often embodies vast regulatory schemes designed to protect the public or some section of it rather than the adjustment of individual rights and duties.
The final essay, Aspects of the adversarial approach to dispute settlement, was given as an address to the Independent Scholars Association in late 2005.
The adversarial mode of trial, typical of legalism, involves two or more disputants asking an independent judge to decide their dispute and to do so by applying to it the ‘law’, a pre-existing body of rules ascertained by the processes of legalism. The essay describes how this form of dispute settlement is becoming modified. The regulatory trend in which the public or a section of it is a disputant has led to procedural changes such as in the expansion of the class action and the use of regulatory-type remedies, such as the injunction. But the most interesting development described in this essay is the re-emergence of mediation as a mode of settling and resolving disputes.
It is useful to begin with a brief analysis of the term legalism as used in the following essays.
Legalism requires a body of rules forming a system in the sense that each rule falls within a juridical classification expressed ordinarily in terms of rights and obligations and which is related by similarity or contrast to every other classification in the system. What is critical is not just the existence of a system but that it is one which enables the law to evolve with only limited external intervention.The internal evolution of the law is the function of legal science which is indispensable to legalism. It enables the development of substantive rules of law by a process of induction (common law) or deduction (civil law). Each rule is intended to be logically connected to other rules in the system. Theoretically and ideally one should be able to deduce a rule for each new factual situation which might arise by purely objective processes. It is this capacity for the law to evolve without external intervention which is what is meant by the capacity of the law to develop autonomously.
description of common law legalism illustrates this: "The common law is
a developed system of doctrine which we have received from our
ancestors. It cannot be altered consciously by any agency but the
legislature; but from Norman times it has undergone a continual growth
and expansion accomplished by continual deduction and induction. By
deduction a new application is given to an existing principle; many
single instances having been thus produced, in course of time a new or
developed principle is discrerned in them and expounded. By this
process of imperfect induction, the secondary principle is established
as part of the common law, and plays its part in turn in the production
of still more doctrine. The process is so very gradual that, although
the literature of our law is very old and very full, the exact steps
are never easy to trace."
Dixon's description of common law legalism illustrates this: "The common law is a developed system of doctrine which we have received from our ancestors. It cannot be altered consciously by any agency but the legislature; but from Norman times it has undergone a continual growth and expansion accomplished by continual deduction and induction. By deduction a new application is given to an existing principle; many single instances having been thus produced, in course of time a new or developed principle is discrerned in them and expounded. By this process of imperfect induction, the secondary principle is established as part of the common law, and plays its part in turn in the production of still more doctrine. The process is so very gradual that, although the literature of our law is very old and very full, the exact steps are never easy to trace."
such a legal order there can never be a gap in the law. If a rule is
not explicitly applicable a rule will in all cases be discoverable
through legal science.
In such a legal order there can never be a gap in the law. If a rule is not explicitly applicable a rule will in all cases be discoverable through legal science.
Of the legal orders mentioned in the Introduction, we will be chiefly concerned with the differences between legalism and the regulatory legal order. But it is evident that long after legalism became the predominant legal order in Europe custom hung on tenaciously. And, it should not be assumed that custom is of no account today. It is especially important in the fields of international commerce and in international law, where in the absence of treaty it governs relations between states. Nor should the resurgence of mediation as a mode of dispute settlement be overlooked, particularly in family law and industrial law. It remains the appropriate way to determine disputes wherever a dispute can be best resolved by being settled rather than decided. And that, as in pre-state kinship societies, will be the case where the dispute concerns an interpersonal relationship, particularly if it be a continuing one. The resolution of the dispute will be achieved when the relationship fractured by the dispute is restored. In such a case the dispute is resolved not decided by the application of pre-existing rules.
This observation brings out an important aspect of the matter we are discussing.
It is rarely the case that a given legal system will exemplify the legal order to which it belongs in its purest form. Legalism uncomplicated by Lex or other laws extraneous to the system has never existed. We have mentioned custom which was formalised or remained as an enclave in societies governed by legalism. And societies in which a regulatory legal order predominates frequently left custom untouched to control private relations, as can be seen in the case of both ancient China and India. None of this, whilst true, affects the broad validity of the classification of the legal orders to which legal systems belong.*
Regulatory law may generally if somewhat inexactly be described as official law made by officials: even if enacted by a formally separate legislature, laws will have been initiated and formulated by officials. The purpose of a regulatory law is to give effect to policy of a public character. The law made will have no necessary – that is, logical – connection with any other regulatory law. It may, of course, be prudent to link laws administratively, so that there is uniformity and consistency in point of policy and administration. Certainty is important in the operation of the law under either legal order. The content of a regulatory law will typically be related to some public question. That is, it will not be concerned with a definition of private rights or obligations inter se. Thus a penal element may be introduced into a law relating to disputes between individuals which, under legalism, would be resolved by civil remedies. The T’Ang and later codes enforced customary rules criminally in the areas of marriage and succession.* In the Soviet Union, especially during the Stalinist period, economic default, negligence and contractual breach were enforced criminally.
The great codes of imperial China were merely a convenient way of consolidating administrative instructions and identifying punishments for their disobedience. The Chinese codes did not specify the rights and obligations of citizens between themselves. They were a kind of instruction for magistrates and specified penalties for the infraction of the code’s commands. There was no logical interrelationship between the rules of the codes. Legal science was starkly absent. Headings in the codes were referable, not to legal categories but to the great administrative departments of the Chinese state. In the application of the codes there was no separation of the judicial from the executive power.
The outward manifestation of a regulatory legal order is that the law is imposed not derived and is expressed in codes, statutes, rescripts, decrees and regulations. It is a mistake though to assume that these external forms are sufficient criteria for distinguishing the two legal orders and, for example, just because there is a code, the legal order is regulatory.*
It is useful to consider an example of the way in which legalism, on the one hand, and a regulatory legal order, on the other would treat a particular case. Let us first take legalism. The tort of nuisance at common law gives rise to rights and obligations between occupiers of land as, for example, where an occupier wrongfully allows the escape of a deleterious thing into the land of an adjacent occupier. The tort of nuisance did not derive from statute but evolved into its modern form by judicial application of the doctrine of precedent. The regulatory approach on the other hand reflects a public interest. A Town Planning Scheme also deals with the use of land but is or purports to be based upon a public interest as to the way in which the land should be used, and this quite independently of harms caused to individual occupiers by the manner of its use. It does this by zoning the land and enforcing the prescribed use by public action. We see analogous extensions of regulatory legislation in such fields as environment law, product liability, consumer protection and competition law.
There are two situations in which a regulatory legal order may originate (a) one in which no system allowing for the autonomous development of the law exists or has existed, at least indigenously, as in the case of imperial China: and (b) the case where such a system has existed but has been transformed gradually, as in late Rome (and, some would suggest, in the post-nineteenth century common law) or by Revolution, as with Soviet Russia.*
The regulatory law of imperial China and the centralised states of Asia, such as the Mughal Empire, extended legal control to the outer reaches of their vast empires for public works and for military and revenue purposes. Nevertheless, they were quite relaxed in their control of private law unless it was feared local disputes would lead to disorder. In China, private law was substantially left to custom and dispute settlement to the clan and neo-kinship group. Thus the ancient Chinese state operated at two levels: at one level the rigid centralised commands of public law enforced by severe penalties and, at the other, the regulation of private law through custom and clan mediation.* The Mughal State was similar. It imposed order but, except to ensure the collection of revenue, the government left village life to caste and custom.*
This overview of Roman law and its legacy has the restricted purpose of explaining Roman law as the originating force in western legalism. It is directed to how it was that through Roman law, through its systematic character and through the development of Roman legal science, legalism came to be formed.
Its introduction was neither deliberate nor preconceived. It was initially the work of the jurisconsult’s responsa and the praetorian edict. Thereafter, Roman law was systematised in the writings of the jurists. A feature of it was that, “the jurisprudence of both the Republic and the Principate avoided the fixing of the law by state enactment. The tendency of the jurists had been rather the contrary, namely to prevent the law becoming petrified and stabilised. They wished the law to remain in a state of flux, so as to be adaptable and elastic”.*
The Heroic period - Formation of Roman Law - Late Republic, Early Principate
The Twelve Tables (450 B.C.) constituted one of the first major concessions made by the patricians to the plebeians. Frustrated by the inaccessibility to the law, especially to the law of Debt, the plebeians demanded the laws be written down and made publicly available. In making this demand the plebeians were not without leverage. They were needed for Romes’ armies.
But possession of the Twelve Tables and their interpretation remained with the pontiff-jurists. Their authority was considerable because besides needing interpretation, the Twelve Tables had many gaps. Even the patria potestas* was not included. In the old Roman law no claim could be sustained unless it fitted within the legis actiones. The form of the claim had to be expressed in ceremonial language using the precise form of allowable words. It was the pontiff-jurists who instructed the parties as to what these were, either by dictation or by prompting them during a hearing before the iudex.
Eventually the pontiff-jurists’ hold on the secrecy of the law faltered. It was said that in 304 B.C. one Gnaius Flavius, a pontiff’s clerk published his master’s record of the legis actiones. This was received with popular approval. Whether true or not, in 300 B.C. plebeians were admitted to the College of Pontiffs and in 289 B.C. the College was formally severed from the administration of justice.
The jurists who succeeded the pontiff-jurists were not legal practitioners as we would describe them. “In Republican Rome the prudentes were just a few men designated as such by a peculiar social tradition, to whom the exercise of their craft was not a means of livelihood, but part of a public career.”* They belonged to the same patrician class as the pontiff-jurists.
The consultation with a jurist might be formal, as when he gave a written opinion or informal, as when given during a walk in the Forum. Jurists* never appeared in Court. Advocacy was the work of the orators, although jurists might give the orators advice during the course of the hearing before the iudex.
What was basic to the development of Roman law in the Republic was that the jurists were independent. They were not public officials.*
It is important to understand how the advice of the jurists came to matter so greatly.
Civil proceedings in Rome differed from those with which we are familiar. They were more akin to what we would understand by a reference to arbitration; the reference being to a lay judge known as a iudex.
The plaintiff would commence proceedings by making his claim in a set form of words appropriate to the particular legis actio. The defendant would reply similarly with a set form of words. The claim and denial would be made before a magistrate* - from the fourth century B.C. this was the praetor* - who would settle the issue between the parties in a precise form of words. The magistrate did not try the case but would send the issue defined by him to the iudex for trial. This form of procedure which applied at the time of the legis actiones continued during the formulary period described below. It was not until 294 A.D. that civil procedures in Rome became similar to our own.
At all stages, in settling the issue for trial and even during the trial itself, the parties, magistrate and iudex were dependent upon the legal advice of the jurists. “They needed a jurist to give authoritative advice or responsa to help them.”*
The office of praetor was created in 367 B.C.* when the administration of justice was separated from the office of Consul. In strict constitutional terms what had happened was that part of the Consul’s imperium - the supreme executive authority of the Roman republic - had been conferred upon the praetor.* The praetor was vested with the authority of a magistrate. The praetor urbanus was appointed to administer justice in the city.
By the third and second centuries B.C. Rome’s expansion had led to increasing contact with aliens.*
Interaction with aliens presented problems because Roman law was rigid in its application of the principle of personality. The ius civile was confined to citizens.* In accordance with the same principle Roman courts would leave disputes between foreigners to their own law. But what of disputes between citizen and foreigner? Strictly a foreigner, in this situation, was rightless but the expanding commercial interests of Rome made it necessary to accord protection to foreigners.
In 242 B.C. an additional praetor was appointed, the praetor peregrinus. The praetor peregrinus exercised jurisdiction involving foreigners.*
The praetor peregrinus could not, as we have said, meet the problem of the applicable law by admitting peregrini to the civil law. That would not have been constitutionally permissible. What he did was initiate a new procedure, the formulary system, which enabled non-citizens to seek justice without having to rely upon the legis actiones. This took place in the second century B.C.*
“Under the new (formulary) system, an issue is submitted to the iudex in the form of words making it plain to him that if he finds certain assertions of the plaintiff to be true it is his duty to condemn the defendant, and if he does not find them true he is to absolve him.”* The plaintiff and defendant had to appear before the praetor and with his aid work out the formula, a statement of issues, and also what decision should follow from the facts found. “The parties agreed (and could be compelled to agree) to submit this definition of the issue and its consequences to decision by a single lay iudex, usually chosen from a panel of respectable citizens drawn up by the magistrates. Evidence and argument before the iudex followed... the iudex then gave a decision... as required by the magistrate’s direction.”*
But once the legis actiones were abandoned the praetor had a considerable discretion in the content of the formulae which he issued. He could issue a formula even if there were no basis for it in the civil law* although in doing so he would seek not to contradict the civil law directly.
One source of law drawn upon by the praetors was the ius gentium. The ius gentium was the law of nations - that is the law common to all nations. The justification for drawing upon the ius gentium in this way was that it was identified with the law of nature, an idea introduced into Rome at about this time by the stoics. The ius gentium, as natural law, was thought of as superior to positive law.*
This formulary procedure was the fulcrum upon which the new praetorian jurisprudence based upon Roman legal science was established.
Each praetor would issue an edict at the beginning of his annual term stating the guidelines which would govern him in issuing formulae during the coming year. To a large extent a praetor was content to follow the edicts of his predecessor and in this way the praetorian Edicts built up a new corpus of law known as the ius honorarium. In the earlier years praetors would not necessarily adhere to the edict announced by them at the beginning of their year of office, but in 67 B.C., the Lex Cornelia prohibited praetors from departing from the edicts they had announced.
The praetor, when framing his annual edict setting out the principles on which he would issue formulae in the coming year, and in issuing a formula itself, would consult with the jurists whom he had appointed to his concilium.
During the closing years of the Republic and the early years of the Principate, the development of Roman law was essentially through the praetorian edict. The legal renewal beginning in the second century B.C. had its source in the responsa of the jurists but it was the praetor’s formula-issuing power which enabled the responsa to take effect as law. This power had originated, as we have said, in the need to afford relief to foreigners. Eventually, though, formulae became available for both civil and praetorian actions. “The chief instrument by which the law was altered was the combination of juristic interpretation with the praetorian system. The main lines of the edict had no doubt been worked out before the end of the Republic but ... the actual edict ... represents only part of the praetorian law: It is the jurists who complete it ... “* *
We can see in the various formulae the way the praetors dealt with the ius civile. As Gibbon said, “sometimes they resorted to fiction.” Thus the actio furti* was allowed only to citizens under the civil law. If, however, the thief were a foreigner the formula would be expressed, “If he ought, were he a Roman citizen, to pay damages as a thief”. Sometimes the formula would simply state that if such and such facts are proved, a formula will be granted.* Ordinarily the praetor would seek to circumvent, not confront, the civil law rule. Thus the ius civile required a testator to appoint as his heirs, any person under the power of the testator who became sui juris. But to institute the heirs, the civil law insisted upon ceremonial language. The praetor was not concerned with this formality of language. All that he wanted was writing suitably sealed. But he could not himself ‘make’ an heir. That could only be done by a testator. But what he could do was grant the bonorum possessio to persons of his choice. They would then have the right to certain remedies by which they could gain possession of the goods of the deceased. The bonorum possessio would be granted whether the ceremonial language had been used or not.*
The praetors were, as we have said, guided by the jurists. Thus where the edict would promise “to deal with cases where it is alleged a transaction has been entered into with a minor” (under 25) it was the jurists who worked out definite rules for the granting of integrum restitutio: and so a minor could get integrum restitutio if his inexperience had led him to enter into a transaction which turned out to be disadvantageous even though the other party did not take advantage of his youth. The praetor could grant in integrum by restoring the party to his position before the transaction.*
Formerly, no recovery was allowed for non-physical iniuria but the praetor granted formula for convicius (insult) and so defamation became a wrong. The Lex Aquilia* had allowed recovery for damage to property but the statute made no provision for indirect damage. Thus, to lay down a stone and trip a horse did not lead to damages.* The praetor remedied this so that consequential damage was allowed by his formula.
But eventually the praetors granted redress when the civil law would not allow recovery at all. Originally there could be no recovery for deceit. But we know in this instance the actual name of the praetor who first granted a remedy for fraud or deceit. As Cicero records, the formula de dolo was first granted by Aquilius Gallus in 66 B.C.*
Another entirely new cause of action was metus: where a man had been induced by threats to perform an act from which he had suffered loss.
One important consequence of all this was a change of focus. The only question concerning a litigant had ceased to be whether he had a remedy within the legis actiones and, if so, what it was. He still did not think immediately of rights and obligations but the tendency to do so had begun.
In the last years of the Republic the prudentes were still practical men concerned with each particular case. They worked from precedents and sought for their client the precedent closest to the matter in hand. But implicit in any system of precedents is a general principle. The jurists of the Republic were far from seeking to formulate a code of abstract principles but a tendency to abstraction was beginning.*
It was during the last years of the Republic that the first major work of Roman jurisprudence was written. Its author was Quintus Mucius Scaevola. Consul in 95 B.C. and, like his father, Pontifex Maximus, Quintus died in 82 B.C., murdered by the Marian Party.
His work the Iuris Civilis surveyed the Roman Law of the late Republic in eighteen books. He was not the first jurist to write but his Iuris Civilis was the first endeavour to classify and systematise the law. Quintus was also the last jurist to be Pontifex Maximus. As Schulz has written, “with Q. Mucius we reach at once the climax and the end of the Pontifical science of private law. The list of pontifices after his death include not one of the jurists known to us; clearly the pontiffs were withdrawing from private law…”*
The Iuris Civilis itself was described by Schulz as “the book which laid the foundations not merely of Roman, but of European jurisprudence…”*
The Classical Period - consolidating the foundations
The ‘heroic age’ of ‘daring pioneers’ having passed with the Republic, “now their ideas were to be developed to the full and elaborated down to the last detail”.* The praetorian jurisprudence continued but with a tendency for the edicts to become more stereotyped. The edicts were finally stabilised in Hadrian’s reign. For this and other reasons, the age of Trajan and Hadrian represents a ‘break’ in the development of Roman jurisprudence during the Principate.
The apprenticeship training of jurists continued; the apprentice jurist would sit with his master during consultations. But there was a change in the class from which the jurists came. No longer were they the independent aristocrats of the Republic. Many came from the new and prosperous families in the Italian towns or from Roman families who had settled in the provinces.* Some, and an increasing number, joined the civil service and received salaries.* Others ceased to be consultants and became teachers and writers. By now there were even jurists who gave no responsa at all.*
During the first period of the Principate two schools of master-jurists arose - the Proculians and the Sabinians. The differences between these sects does not matter, but their existence seems to have been associated with increased teaching and writing. The days when, in Gibbon’s words, “the jurisconsults were seen walking in the forum, ready to impart the needful advice to the meanest of their fellow citizens”, had passed.
What we can say is that from the end of the first century we approach the age of the classical jurists. Rather than provide responsa for individual cases they sought to reduce the law to writing and present it in a comprehensive and final form. It was the works of these men which, however glossed and elaborated upon, is the Roman jurisprudence that came to be embodied in Justinian’s Code and in that indirect way entered the European civilisation.
Thirty nine of these writers are quoted in Justinian’s Digest: Gaius, Julian, Papinian, Paul, and Ulpian appear most frequently.*
Julian was the last and greatest of the Sabinians after which the two schools ceased. It was Julian who, at the instance of Hadrian, composed the Digesta which embodied all the praetorian edicts to that time and received the endorsement of the Senate. Julian lived into the reign of Marcus Aurelius* He had immense influence during his life.* We have no complete record of the Digesta. Only the quotations from it in Justinian have survived. But “his writings were probably the model upon which Justinian’s Digest was based - in which case we may ascribe to him the greatest influence of any of the jurists on the overall development of the civil law in later centuries.”*
Less is known of the other great jurists. Gaius, who probably lived at the same time, was born at the latest in Hadrian’s reign and completed most of his work about the middle of the second century. His Institutes were written in 161 A.D. and have come down to us in just about their entirety. Indeed, it is the only work of the jurists to have done so. But Gaius appears to have been a teacher and his Institutes were a student text book. Justinian’s own Institutes, also a student textbook, were based upon them. Gaius was influenced by Mucius’s Ius Civile. His is the first recorded instance of the Roman threefold division into ‘persons’; ‘things’; and ‘actions’.* Also, Gaius took account of the ius honorarium but only insofar as it interacted with the ius civile. Thus he deals with the bonorum possessio, but the actio de dolo (fraud) and the actio quod metus (threats) were simply omitted. Gaius, unlike Julian, does not seem to have been famous in his own day but became so after his death. He seems to have been alive as late as 178 A.D..
Papinian was born between 148 A.D. and 153 A.D. He was appointed to be prefect of the Praetorian Guard by the Emperor Septimius Severus. He was murdered in 212 A.D. It is said that this occurred on the orders of the Emperor Caracalla when Papinian refused to make a public declaration justifying Caracalla’s murder of his brother and co-regent, Gaeta. Papinian wrote no comprehensive treatise. Nevertheless, he was in many ways the most celebrated of the jurists and under the Law of Citations* his opinion was to tip the balance if the opinions on either side of the issue were equally divided.
Paul was a younger contemporary of Papinian. He was Papinian’s assessor during the latter’s Prefectship of the Praetorian Guard. He became a member of the imperial council. He is thought to have been the most prolific writer - 80 major works in 275 books (a book comprising between 30-50 pages). About one sixth of Justinian’s Digest is taken from Paul’s work.
Ulpian was born at Tyra. Together with Paul he was an assessor to Papinian when the latter was Prefectus Praetorio. His works were very extensive and were heavily relied upon by Justinian. He became Praetorian Prefect to Severus and was the young emperor’s chief legal adviser. Most of his works belong to an earlier period during the reign of Caracalla. Ulpian was murdered by mutinous guards in 223 or 228.* * With the murder of Ulpian the line of jurists comes to an end.*
Trends in Legal Science during the Classical Period
It remains to consider some of the trends in legal science during the classical period.
Although we may only speak in terms of degree, the classical period was one of decreasing formalism. “Mancipation, with its complicated ritual had originally been necessary for passing full ownership in res mancipi.”* (Res mancipi constituted the wealth of a rural community: land and houses, servitudes over land, slaves and beasts of burden.) The rigidity of this became mitigated by the praetor’s edict. Possession of a res mancipi was recognised as a kind of ownership even before it matured into full ownership by usucapio.*
In another area, fideicommissa (trusts) were recognised, notwithstanding the absence of testamentary or any other form. These would not enable a right in rem to be transferred directly to a beneficiary but for practical purposes they were as good as legacies.
The law also became more flexible. General standards tended to replace rigid rules. An important example of this was the principle of bona fides. As an idea this hardly existed during the Republic. But it came to develop many applications. Thus sellers would be bound to indemnify for defects in the sold thing even if nothing had been stated about the quality of the goods in the contract upon the principle that they must observe good faith. Dolus came to have a wider application. Originally confined to actual trickery the actio doli became available where the defendant caused loss through a lack of bona fides.
Along with this was a continuation of the move from remedies to rights - although this took time because of the entrenched complex procedures of Roman law. It was not possible to dispense entirely with the procedural link to remedies until after 294 A.D. when the new procedure which was then introduced (and described below) became available in every case whatever the remedy sought. We see an instance of the procedural link being maintained with the transfer of obligations. At first transfer could only be effected by the extinction of the original obligation and the creation of a new one. A step was taken to mitigate the inconvenience of this so that the benefit could be transferred by mandatum. Accordingly if, say, A had a claim against B he could transfer his right to sue on his claim by conferring a mandatum on C. But C could only sue in A’s name. The debtor could set up against him whatever defence he had obtained against the original creditor. Only later with the actio utilis could C sue in his own name.
During the Principate the tendency to classification begun by Mucius consolidated. Thus, in addition to the threefold classification to persons, things and action, mentioned above, Gaius distinguished between res corporales and res incorporales*, the former being those which are tangible, the latter such as usufructs, obligations and servitudes, being incorporeal things.*
However, only a partial formulation of a general conception underlying contract developed. Roman law enforced informal contracts if the party had actually performed his part of the agreement but otherwise agreements could not be enforced when neither party had performed his part, except in the case of four consensual contracts. These were sale (emptio venditio), hire (locatio conductio), partnership (societas) and mandate (mandatum). These four were grouped together by the jurists and consent became the underlying principle justifying their enforcement. But generalisation halted at that point.*
Roman Law becomes regulatory – the transformation of legalism
In a legal system in which legalism has been dominant, it will only become displaced by a regulatory legal order when the autonomy of the system inherent in legalism and its capacity for internal development have been replaced by legislation or other externally imposed laws. The test is whether any code or statute has been designed to close or supersede the system or only reform it.
In Rome this happened gradually with the steady accretion of authority in the emperor and increasing imperial legislation. It also developed with the formation of a permanent imperial civil service.
And yet it is only by looking back we can trace the transformation into a regulatory legal order.
The first step was the ius respondendi.
“Augustus bestowed on some, not very numerous, jurists the right to give a responsa auctoritate principis: they were to give them by his permission, on the personal auctoritas of the Princeps. This did not mean responsa could only be given by imperial licence. That would have breached tradition. An unauthorised jurist could still give responsa.”*
In conferring the ius respondendi Augustus was giving the opinions of the favoured jurists highly persuasive authority. Neither he nor they would have been oblivious to the fact that this higher authority was derived from the emperor. The ius respondendi was thus regulatory insofar as it was a form of authority imposed upon the system from without. But it is equally true that, on the face of it, it was designed to preserve the underlying system of the jurisconsults and praetors. It attempted to define the relative authority of the various jurisconsults. In this it was, it may be said, only seeking to provide certainty in a way similar to that of the Lex Cornelia (67 B.C.) which held praetors to their annual proclamation of the formulae they would issue.*
We have already mentioned the codification of the edict (125-128 A.D.) in Hadrian’s reign by the great jurist Salvius Iulianus (Julian). Future praetors were directed to issue their edicts in the form settled by Julian. Thus was cut off the main way in which the jurists’ responsa had hitherto developed the law. “The great change was that henceforth the individual praetor could not make any alteration to the edict. He did indeed continue to publish it as his edict when he entered upon his office, so that the distinction between the ius civile and the ius honorarium persisted, but as a source of law the edict ceased to come into consideration.”*
Next we may trace the progressive increase of imperial legislation as a source of law.
In the Republic leges became law through their adoption by the Assemblies, the Comitia or the Concilium Plebis whose plebiscita bound not just the plebs, but, after the Lex Hortensia in 287 B.C., the whole community.
Augustus purported to restore to the Assemblies the legislative power assumed by the Triumvirate. In form he never sought to legislate directly, except in certain administrative matters, but the Lex de Imperio opened the way for increased imperial legislative power by recognising that the imperium of superior magistrates permitted them to issue edicta. It followed that the emperor, as supreme magistrate, could do the same.
In the reign of Claudius (41 A.D.) the senate began to initiate legislation in the Assemblies.
Thereafter the Emperor would appear before the Senate to make a speech (oratorio) and the practice was for the Senate to approve any legislative proposal included in it.
About the middle of the second century it was accepted the emperor could legislate directly.* The emperor would do so in three ways, all of which were collectively described as constitutiones: edicta, decreta given in his capacity as a superior tribunal and rescripts when his advice was given on questions of law.
By the third century the emperor was untrammelled by any competing authority. He was the sole legislator. This was expressly affirmed by the jurist Ulpian.*
With the Dominate there was a proliferation of statutes. As Schulz explains:
“A novel and characteristic feature of the (Dominate) is the tendency to convert all law into Statute law: under an absolute monarchy all law tends to be thought of as a Royal command … it was quite alien to earlier Roman jurisprudence … The proper purpose of leges, senatus consulta and imperial constitutions was to introduce reforms, not to stabilise ... in classical times, as in Republican, juristic law held the first place, both in volume and esteem; the scanty leges, senatus consulta and constitutions were in the background. But from the time of Diocletian there was a veritable revolution. Statute law, as generating ius certum, became the ideal … the object became to embody the whole law in statutory form, to stabilise, not to reform it. This emanated from the jurists in the Central Office. Answers to questions of law, often from the provinces – were no longer referred to the jurists but were answered by the Emperor’s rescripts prepared in the Imperial Chancery.”*
We find Justinian attempting in vain to stabilise legislation in the same way as he sought to ‘digest’ and finalise the writings of the jurists.*
Along with increased legislation was the formation of an imperial civil service. The Republic had lacked any organised body of civil servants to assist frequently changing magistrates. During the Principate a trained and permanent service responsible to the Princeps himself was formed. The formerly independent jurisconsults were now appointed to the civil service. Hadrian established the Concilium Principii as a standing order of the state with permanent salaried officials and jurists approved by the Senate becoming regular members of it and were paid equestrians.* They were no longer giving responsa which effected law, but had become authors of imperial legislation.
By Hadrian’s reign we have reached a dividing line in the progression from legalism to a regulatory order in Roman law. This is drawn out by Schulz in the following passage: “Within the classical period two phases can be distinguished, the line of division being the accession of Hadrian. The Principate is a period of long drawn-out and ever increasing bureaucratisation of public administration. The tendency of every bureaucracy is to concentrate a monopoly of the development of the law in government office, to codify the law and to control its application and execution in detail … It was left to Hadrian to take decisive action by codifying the edict, to make a practice of employing the leading jurists as members of his consilium and to provide for the more thorough training of future officials.”* Clearly, once the jurists had lost their independence and could not develop the law autonomously, the legal order was well on the way to becoming regulatory.
In 284 A.D. Diocletian ascended the throne following the turmoil which had succeeded the assassination of Alexander Serverus in 235 A.D. In form and substance the Roman Emperor became indistinguishable from an oriental monarch. With the Dominate, Roman law had become unquestionably regulatory. The great bulk of the law dealt with in the works of the jurists fell into disorder. Roman legal science became anonymous and embodied in Imperial rescripts. By 294 A.D. the formulary procedure through which the ius honorarium had evolved, finally ended. A constitution of that year forbade provincial Governors from delegating the decisions on litigation to iudices.
Juristic writing ceased with the death of Ulpian (233 A.D.). Theodosius II made an imperfect attempt to rescue it from disorder through a Code and the Law of Citations which he published in 426 A.D. It declared that only the writings of Papinian, Paulus, Ulpian, Gaius and Modestinas were authoritative. These could be cited in the Courts. If their opinions were not in agreement on the point in question, that of the majority was to be followed. If the numbers were equal the opinion of Papinian was to prevail. If in case of equality Papinian was silent on the matter, the judge could adopt his own view.
Thus so great was the desire for certainty, juristic development, essential to legalism was closed and questions of law were to be resolved not by a search for rational principle but by counting heads.
The Law of Citations failed in this endeavour and the final steps in stabilisation culminated in Justinian’s Digest.
The Corpus Iuris Civilis - the apex of Roman jurisprudence
Justinian ascended the throne in 527 A.D. to preside over what became described as the Eastern Empire. In the fourth century, the Roman Empire was divided between East and West for administrative purposes. This became permanent in 395 A.D.* Rome was sacked by various barbarians - the Goths in 410 A.D. and the Vandals in 455 A.D. - and narrowly escaped the Huns in 452 A.D. In a sense this was an end to the Western but not of the Eastern Empire. Justinian sought to recover those territories of the Western Empire which had been lost and succeeded in doing so.
Having done this he explained in his magnificent Introduction to the Institutes why he embarked upon his code. “All peoples too are ruled by laws which we have either enacted or arranged. Having removed every inconsistency from the sacred constitutions, hitherto inharmonious and confused, we extended our care to the immense volumes of the older jurisprudence; and, like sailors crossing the mid-ocean, by the favour of heaven we now completed a work of which we once despaired. We summoned together the most excellent Tribonian, master and former treasurer of our sacred palace and the illustrious professors of law, Theophilus and Dorotheus …”*
The Corpus Iuris Civilis, which contains not only the Digest of the writings of the jurists but Justinian’s codified enactments, is immense in size. It consists of 2,200 closely packed quarto pages. The Digest, and to a lesser extent the Institutes, will mostly occupy our attention. A Commission of Experts, numbering 16, headed by Tribonian, had been charged with examining all the juristic writings, to collect and order them, to remove all obsolete matter and give attribution to those whose statements of law, as updated, were to be incorporated in the Digest.*
In the course of its works the Commission read and examined something like 2,000 books, amounting to three million lines. The completed Digest consisted of 50 books subdivided according to subject-matter. The Commission was broken up into three committees each of which focused upon a different jurist. In all, the Digest contained material from the writings of 39 jurists, the majority of whom had written between 100 A.D. and 250 A.D. This included 2,464 extracts from Ulpian, 2,081 from Paul, 601 from Papinian, 535 from Gaius and 2,883 from other jurists.*
The Digest was begun in 530 A.D. and published in 533 A.D.
“It will be noticed that at the time of its compilation most of the material from which it was derived was over 300 years old.”* Justinian gave the Commission authority to remove obsolete matter in the jurists’ writings and bring the law up to date. In this, they were given considerable freedom and were not bound by the Law of Citations, nor confined to the jurists nominated in that law. Accordingly, they had authority to amend statements in the writings of the jurists so that the law, as stated in the Digest, would be current as at 533 A.D.
Although the task was chiefly one of collation and classification, the substantive revision of the law undertaken by Tribonian and his Commission was by no means negligible. Very often it meant the completion of a process of defining concepts which had their origin in the work of the jurists, or in completing a process of ‘de-formalising’ the law.
Thus the working out of the concept of a security involved dispensing with the requirement of a conveyance to the creditor as had been the case with the oldest mortgages of Roman law. These had, because of this, needed mancipatio to give them effect and a reconveyance of the property to the debtor when the loan was repaid. Some time before Cicero, the praetor Servius, allowed possession of the thing to be taken as security; possession being recoverable on repayment of the loan. This was originally given in favour of a tenant who was given possession of his stock as security to the landlord for rent due and was extended to possession of things generally. But the transfer of possession, although more flexible than conveyance of ownership, remained commercially inconvenient. Before Justinian, the action introduced by Servius was extended by an action known as quasi-Serviana to cases where the owner (borrower) retained possession but the property was security for the debt. “Thus in the result, a mere agreement, which need not even be in writing - and without any transfer of possession to the mortgagee - enabled an owner to borrow money and give ample security to the creditor without subjecting himself to any inconvenience.”*
Justinian, so to speak, ‘topped off’ this process by regulating the mortgagee’s power of sale in the event of enforcement of the security so as to restrict it to its security character. Justinian required the creditor to hand over any surplus obtained on sale of the secured property to the debtor and allowed foreclosure only where the creditor was unable to find a buyer at an adequate price.*
We can also follow the incomplete development of the promissory principle in contract. First was the need for delivery of ownership and then possession of a thing, a res, before a promise in return for it could be enforced (mutuum) and then it was sufficient that only possession was delivered and so a promise for a loan for use (commodatum) was enforceable and, finally, in Roman law before Justinian, a promise given for performance by the other party was capable of enforcement. But at that point the development halted. “Unless one party had actually performed his engagements, the contract could not be enforced at the instance of either.” The idea of unjust enrichment prominent in Byzantine jurisprudence played an important underlying role in Roman law thinking on contracts.* Justinian advanced the greatest change. The pacta legitima allowed for enforcement of a mere promise without consideration provided that certain forms were observed, evidencing a deliberate intention to make a gift.*
Justinian completed development of the idea of novation so as to make clear there could be no novation - and so both the original and new obligation would remain in force - unless both parties declared that a novation was intended.*
Also, the rigid formalities in the making of wills were modified. The will, in the old Republican law, required a nominal conveyance for sale with five witnesses. The praetor had conferred a right of action on the person named as heir to possession of the things bequeathed even no such nominal sale had taken place. Justinian proceeded to simplify the whole evidentiary process. No seal was required. Only the signature of the testator and witnesses at the foot of the document were needed.
These are only a few of the contributions the Digest made to the development of the law.
But the object was not just to bring the law up to date. The aim was to freeze it. The code was to be the exclusive authority. It was also to be the sole authority for the juristic writings referred to in it. No reference could thereafter be made to the originals, even where those were clearly at variance with the text. No commentaries upon the digest were allowed. This, in Justinian’s view, would only lead to the kind of confusion which had obscured the plain text of the praetorian edicts. Justinian allowed only a literal translation of the work into Greek or indicies or palatitia. By an index was meant only a short summary of the contents of a passage. Palatitia were collections of parallel passages. The penalty for breach of these rules was severe. It was treated as equivalent to the offence of forgery.
The definitive and conclusive closure of the system of juristic interpretation was entirely regulatory in purpose. It was not that there was to be no more legal development nor that there were to be no more jurists. But the work of jurists would not be in tendering advice or in writing of legal works, which because of their authority had been the chief method by which legal science was applied and by which the law evolved during the Republic and early principate. There would be nothing remotely like the praetorian edict before Hadrian. Growth in the law was to be by Imperial statute. Jurists would work in the Imperial Chancery. Their functions would be to prepare, collate and arrange the imperial legislation. There were no longer independent advisers who, by their opinions and through their writings, authoritatively laid down and created the law.
The origins of legalism: comparison of Roman Law and the common law
The characteristic common to Roman law jurisconsults, common law judges and barristers and civil law scholars is that they are not officials or if, as in the case of the judges presiding over common law courts they are officials of sorts, they are nonetheless independent of the executive in the carrying out of their functions. None of them purport to be giving effect to executive policy but are applying, interpreting and expounding something separate from that - the Law.
The question is how, having themselves no executive power, juridical authority was nonetheless conceded to them. In time - but only after a long period - this separation from the executive was recognised constitutionally in the Anglo-American and continental separation of powers doctrine. But this was never the case in Roman law and during the Republic the jurisconsult’s responsa had no formal backing. What then gave them their authority? To some extent it derived from what may be described as their pontifical inheritance. Before the Pontifical College was formally separated from the administration of justice and the granting to litigants of the legis actiones the pontifical jurists alone possessed the secret knowledge of these grounds of action. The Pontifex Maximus’s judicial powers seem to have been additional to and independent of the Consul’s imperium. It is highly probable that the non‑pontifical jurists from the time of Q. Mucius must have preserved something of the status of their pontifical ancestors.
But the authority of the jurisconsults goes deeper. It depended upon the nature of civil proceedings in Rome. The iudex who determined the facts and decided the case was not a lawyer. And the praetor who granted a formula and announced his edict setting out the grounds upon which he would do so during the next year was not a lawyer. Of necessity they were dependent upon the responsa of jurists for advice on the law.
The procedures directed to finding an issue almost compelled the need for legal science. This was the case in the common law as well as Roman law. In both, a final decision was made by a lay tribunal not trained in the law: the iudices in Rome and the jury in England. In both there was a formal definition of the issue - the formulae in Rome and the pleadings in the common law. What was of critical importance was that the lay character of the tribunal of fact made it necessary to isolate the issue of law from the issue of fact. In Rome a formula which framed an allegation of legal right was ius concepta but if defining an issue of fact it was factum concepta. In English law the word ‘issue’ is found at the very commencement of the Year Books, in the first year of Edward II, and the distinction between the issue en Lay and an issue en Fet was current at that time.*
The advent of the formulary system was itself very important. It meant that with the abandonment or withering away of the legis actiones new principles of law had to be evolved. Jurisconsults were professional specialists who, aided as we know, by Greek dialectic were able to perform this function. And so, in addition to being non-official, the other ingredient necessary for legalism possessed by both Roman jurisconsult and English barrister was professional specialisation.
In Rome the jurisconsults were not principally advocates in the courts. Advocacy was left to the oratores who knew little law and if Cicero, the most notable of them, is representative, had a disdain for legal science.*
It is interesting to speculate on the future of Roman law and of European legalism had the advisory function rested with the oratores. Perhaps we can get some idea of what would have occurred from the failure of legalism to penetrate Roman criminal law from the time the quaestiones perpetuae assumed their responsibility for the administration of criminal justice.*
There were similarities between the judges and barristers of England and the Roman jurisconsults. Both had to escape from religious ancestry and control, although ecclesiastical dominance in England was never as complete as that in Rome when the Pontifical College and pontifical system held sway over Roman law. But it is probably true of English law, as Keeton remarked, that “once the clerical element on the bench had gone, the way was open for the profession to develop a self-sufficient life of its own.”* In the reign of Edward II (1307-1327) clerical appointments to the bench were evenly balanced. But thereafter ecclesiastical appointees steadily diminished.
At about that time, or shortly thereafter, the decision was taken - momentous in its consequences for the common law and the development of legalism in England - that the King would appoint judges exclusively from the serjeants-at-law.
The legal profession in England was separated from the civil service. That depended upon the rules governing the admission of those able to practice and the system of legal education.
Before the 14th century students appear to have picked up the law from listening to cases in Court. At the same time experienced barristers were encouraged to teach young lawyers.
Maitland has written, “no English institutions are more distinctively English than the Inns of Court and of none is the origin so obscure…”*
Young barristers learnt their law in the Inns and lived there. The serjeants-at-law lived in a separate Inn along with the judges appointed from their body. What was important was that the Inn assumed absolute responsibility for admissions to membership. Only when a novice had satisfied the requirements of the Inn was he eligible to be called to the Bar.
The training of a young Roman jurist was similar in that the state played no part in the training for admission to practice: “On leaving school a young man would attach himself to some jurisconsult with whom his parents had some connection … entering the household of his master, the young man lived with him and his family, attended when clients came for legal advice, accompanied his master to the Forum and observed his behaviour there both as counsel giving responsa and as a member of the Consilium of a praetor or a iudex, or when he assisted a party in proceedings before a magistrate”. But unlike the Inns of Court, “no formal training was given”.* The other agents of legalism - the civil law scholars - who interpreted and expounded Roman law in Europe after the reception, differed markedly in many respects from the Roman jurisconsults and the English barristers but there was one important similarity - independence from official control.* They were not practitioners and were expounding the law from the interpretation of a codified text. This resulted in a different legal method from that of the common lawyers and the jurisconsults who reached principles by induction from an immense number of individual cases. Nevertheless, important as this difference may be for some purposes, it does not matter for the purpose of characterising legalism.
There was, though, one difference between the common law judges on the one hand, and the jurisconsults and civilian scholars, on the other, which did matter. Whilst in each case the respective legal systems could evolve autonomously and the different methods of legal science which each had adopted did not materially affect that, the difference in their formal authority to insist upon changes to the system and the clarity of that authority, did. Only English judges had direct authority to create the system - in their case, through the doctrine of precedent. They had the power to determine the authoritativeness of precedent. The doctrine of precedent and the relative authority of each precedent is established by the courts, not the legislature. (The House of Lords decided it would be bound by its own decisions* and reversed this position by an announcement (1966) 1 W.L.R. 1234. The Australian High Court deferred to the United Kingdom House of Lords until 1963 when it decided it would no longer do so.*)
Not until Augustus bestowed the non-coercive ius respondendi was anything like formal authority conferred upon the jurisconsult’s responsa. In certain European countries such as Spain and Portugal the opinions of Bartolus were given that kind of pre-eminence by legislation. But on the whole the influence of continental jurists upon the system, although substantial was indirect. It was less clear where final authority lay.
Failure of Legalism in Roman Law: Ius Publicum - Criminal Law
At this point we go to a quite different subject. This is the failure of legalism, as developed by Roman law, to make any inroad into the criminal law, constitutional law or administrative law.
Speaking of the legacy of Roman Law, David and Brierley have written:
“It was altogether different, however, in the field of public law. Here the principles of Roman Law never served as a model. Rome knew neither constitutional nor administrative law: the areas of government and administration on the one hand, and that of the law on the other, had always been considered distinct. In the same way, Roman penal law, (was) little developed in the work of Justinian …”*
Why was this?
Inevitably we are drawn to the contrast with the common law where legalism was employed to control state power in order to protect the value we place upon individual freedom. The law can only provide this protection if it is something more than the disconnected commands emanating from the State. It must if it is to control the State have some autonomy independent of executive power. Historically, achieving this was legalism’s original and singular contribution.
And so we must return to the question why it was that Roman Law, which in the private sphere had been legalism’s originator failed to apply legalism to the ius publicum.
The reasons in the case of the criminal law differ from those for constitutional and administrative law.
Before and during the Republic, Roman criminal process was accusatory. In this it was similar to the common law. A prosecution would be initiated by a private person. In the earlier period guilt or innocence was determined by a magistrate but, in the case of a citizen, if either death or fine above a certain minimum were imposed the accused could by a procedure known as provocatio go to the People. Final judgment would then lie with an Assembly. The people were not constrained by what the magistrate had decided or said. Indeed they do not seem to have been restrained by anything. They were able to go beyond the law if they were not inclined to follow it. They were at large.
Something of this ‘popular’ element survived into the Republic when, by a series of laws - the first of which was the Lex Calpurnia in 149 B.C. - permanent criminal tribunals - the Quaestiones Perpetuae - were established. These were presided over by a magistrate who sat with what we would now describe as a jury. This was a very large jury of between 30 and 70.
The jurors, by vote, decided guilt or innocence. They determined all questions of fact or of law. The presiding magistrate did not sum up and “altogether does not pay nearly such an important part in the trial as does an English judge.”*
Such a procedure provided an opening for orators whose addresses to the quaestiones were inevitably rhetorical. No rules of evidence appear to have been developed. This is especially important if we view the trial process from the standpoint of legalism, because rules of evidence require for their operation an issue related in point of law or fact to the offence alleged: evidentiary rules ensure that admissibility of evidence at the hearing is directed only to that issue.
The criminal trial process of Rome was thus to a large degree ‘rule-less’.
It is generally conceded there is need for a ‘popular’ element in the criminal law. To that extent, some modification of legalism is required to accommodate it. In English law this popular element is fulfilled by the jury. It is felt that before a citizen is punished by the State he should be judged by his peers* and that the strict justice of the law may need to be tempered by mercy.
But English law has very ingeniously ensured that the jury, impregnable within its sphere, does not jeopardise the framework of legalism which governs the criminal law and its procedures.
The judge is in absolute control of the law. It would have been fatal for any kind of legalism were that not to be so. The jury is in charge of the facts. The conduct of a criminal prosecution is in the hands of a professional judge and professional lawyers. The process is governed by pre-existing procedures and rules of evidence. The judge decides questions of admissibility.
The judge directs the jury on the law and the jury is bound to give effect to his direction. Their verdict, though, cannot be challenged on the ground that the jury did not adhere to the judge’s direction. What is subject to appeal are the judge’s directions on the law. These can be challenged for their legal accuracy. A retrial may be ordered. The jury can never be asked or compelled to give reasons for its verdict. Nor can it be compelled to give a special verdict, ie, one which seeks answers to specific questions. The jury’s finding must be guilty, not guilty, or not guilty on the grounds of insanity. But, as mentioned, the judge’s directions to the jury may be open to legal challenge.
The judge may comment on the facts in his address to the jury but must warn the jurors that they need not give effect to his view of the facts in any way. (In one instance the judge may give a direction on the facts that is where, in his opinion, there is no evidence at all upon which the jury could properly convict.)
Unlike Roman criminal law legalism is preserved. At the same time the popular element is given effect.
Legalism in Roman Law:
ius publicum - control of the executive power - comparison with the common law
We may comment briefly on the absence of legalism in Roman Constitutional Law. That this was so is not surprising from the late Empire when the Emperors were vested with absolute power. Nor is it altogether surprising in the period of the Republic. Rome, like England, never had a written constitution. It consisted of a series of important statutes* and conventions. In this it did not materially differ in form from the English Constitution.* A supervisory role was exercised by the Roman Senate. The Senate, in the time of the Republic, had no law-making power, nor could it veto a law.* But a law had to be presented to the Senate for advice. The advice which it gave was described as senatus consultum. The supervisory role of the Senate was non-legalistic. The process was political but its advice could effectively interpose to prevent legislation before it came into force.*
The relationship of the Constitution at the time of the Republic to legalism was not dissimilar to that of the English Constitution. They both contrast in this respect with the Constitution of the United States.
We can now turn to the interesting subject of why Rome of the Republic, having developed, if not created, legalism in private law, failed to extend this legalism to the control of executive power. It was not that republican Rome was without some notion of the rule of law. In the early republic the Twelve Tables* were regarded as binding on the Consuls. In 449 B.C. the enactment of the Leges Valeriae Horatiae secured to the plebeians the important right of provocatio which, as has been mentioned, enabled them to appeal to the Assembly against a conviction for certain offences.
But the magistrates of Rome played no part in controlling executive power. They never attempted establishing a system of law which would, independently of the executive, control the exercise of executive power. In this the contrast with the common law of England is marked. The common law became a bulwark against the ‘illegal’ exercise of executive power.
Executive authority in Rome was embodied in the consular imperium. It was unlimited during the consul’s year of office, ‘extending to all departments of government, leadership of the army, jurisdiction and the right of putting legislative business before the Assemblies’.* When the praetorship was created in 367 B.C. the jurisdiction assigned to the praetor and to subsequent praetors was part of the consular imperium. What was assigned to them was jurisdiction to decide civil disputes. And it was by virtue of their power to issue edicts proclaiming to the people what remedies they would grant during their forthcoming year of office, that the ius honorarium was built up and the Edictum Tralaticium, which embodied the previous annual instruments issued by the praetors tended to be followed thereafter by the praetors from year to year and which was commented upon by the jurists.*
Unlike the Judges of the Royal courts of England, the praetors never detached themselves institutionally from the executive.* Moreover, each praetor’s period of service was limited to one year. The praetor never claimed independent authority to control the exercise of the executive power of the consuls. Nor would it have been easy for them to do so. The praetors were in fact minor colleagues of the consuls. Also the praetors were dependent for advice upon the jurists. The latter had no class or other interest in developing a jurisdiction of public law designed to control the executive.
Jurisdictionally, the praetors were only administering that part of the imperium assigned to them. Their edicts could not go beyond the sphere of private disputes. To have attempted to develop new remedies enabling citizens to take action against the executive would have led to charges of excess of jurisdiction.
But the problem with uncontrolled executive power in Rome went beyond the limits of the praetorian jurisdiction or the dependence of Roman legalism upon the jurisconsults, who had no interest in developing a jurisprudence for the control of executive power.
It was chiefly in the provinces that abuse of executive power took place. Here both praetor and Assembly lacked authority. Roman law was circumscribed by the principle of personality.
The provinces witnessed “the subjection of great areas to the autocratic authority of a single magistrate whose duties were military, administrative and judicial.”* The provincials were virtually rightless so far as the ius publicum was concerned. They were non-citizens. They remained in the condition of surrender (the deditio) into which they had fallen when subdued by the Romans.*
The Governors issued their own edicts which no court or other body could disallow. The only available remedy was prosecution of a Governor for extortion after the cessation of his period of office. This was rare, though in Cicero’s famous prosecution of Verres we gain a glimpse of the appalling injustices governors practised.* As Jolowicz says, “it was in fact the great weakness of the provincial government under the Republic that there was no one to control the governors, the only check provided being, under the law against extortion, which enabled him to be prosecuted after his term of office has come to an end.”*
All of this only serves to demonstrate the achievement of the common law.
The common law courts exercised their control of executive power in the first instance through the issuing of writs or commands which were not directed against the executive authority, the Crown, but against the Crown official personally.
The writ of Habeas Corpus enabled any man who claimed he was being unlawfully detained to be brought before the Court so that the legality of his detention might be established. This writ could be issued against state officials but it was equally applicable where the unlawful detention was private.* In considering the issuing of the writ of Habeas Corpus the courts were able to define the principles of personal freedom in English law.
In the same way the ordinary actions of trespass and false imprisonment enabled the powers of arrest of constables and other persons to be defined. In the course of proceedings based upon these causes of action the courts rejected state necessity as a defence justifying arbitrary arrest or seizure.*
Similarly the courts developed principles restricting the power of interrogation.*
But in addition to these personal actions against Crown officials the courts controlled the royal prerogative directly. The royal prerogative may be likened to the consular imperium which was the large residue of power taken away by Lex or plebiscita. The prerogative was likewise the residue of power remaining in the King not withdrawn by statute. The common law courts laid down that the royal prerogative was limited by law.* The courts assumed the authority to determine in any case whether the prerogative existed although they refrained from entering upon the way on which it should be exercised if it did exist.* The foundation for this assertion of authority against the King was expounded by Coke in his Institutes that the King “hath committed all his powers judiciall, some in one court and some in another … the King hath wholly left matters of judicature according to his lawes to his judges.” In other words, the King had made an irrevocable delegation of his judicial power. In the decision of Lord Chief Justice Holt in Groenvelt v Burnell* it was established that control of the administration was a function to be carried out by the judiciary. Lord Holt acknowledged that no statute gave the court power to interfere but ‘it is by the common law that this court will examine, if other courts exceed their jurisdictions’.* The courts did this by issuing the prerogative writs.*
Until the 19th century this supervisory control was largely concerned with Justices of the Peace but with the expansion of government it came to be applied to the whole range of administrative powers and duties.*
Perhaps the most significant area of difference between Roman law and English law in the field of government concerns the military power. Here the contrast is clear. England established the primacy of the civil power. A coup in a common law country is rare. The subordination of the military power to the civil authority is accepted as of course by the military in most common law countries.
In Rome during the Republic and afterwards, the problem of the power of the army in relation to the state proved intractable.
Until the last hundred years of the Republic the authority of the Senate was accepted as being superior to the military power. Consuls were supreme in the field. But they did not themselves raise troops or lead men out to fight without the authority of the Senate. The Senate found the money to equip and supply armies in the field and men to reinforce them. It was to the Senate that army commanders sent reports and it was the Senate which granted a triumph to a successful general. More importantly, it was the Senate that the soldiers looked to for a grant of public land or a share of booty, the ancient equivalent of the military pension. The supreme sanction in times of internal crisis, first issued in 121 B.C., was the Senatus Consultum Optimum creating a kind of martial law.
But around 90 B.C., after the Social War (90-89 B.C.), the position changed. The people in their public assembly became allowed to vote for a law conferring high command upon a popular general. There were thus two rival authorities.
We now enter upon the continuing conflict that arose between competing generals. The Senate entrusted command in the East to Sulla. His rival Marius was able to get the popular Assembly to revoke this and award command of the East to himself. Sulla refused to obey and declined to hand over his troops and marched upon Rome. Sulla was successful and had the law repealed and went to the East. The troops no longer looked to the Senate as the means by which they could obtain recompense. They thereafter followed the General whom they believed would enable them to obtain booty and allotments of land. Sulla himself perceived the problem and among his reforms was the requirement that consuls and praetors should not leave Italy. It was assumed, after 89 B.C., that Italy was permanently pacified and it became a constitutional principle that no troops should be stationed within its boundaries. The importance of this physical separation of consuls from the military forces outside Italy was that it was an endeavour to establish the authority of the civil power. But it was, as we know, unsuccessful. “Without the army the Roman state would have broken up at once … Caesar frankly confessed that he owed his power to the army and the army was the weapon with which Antony and Octavian struck down the last attempt of the Senate to reassert itself. Antony and Octavian alike founded their pretensions on the supreme power of the army.”* *
England was faced with the same problem. The authority over the armed forces was historically vested in the King. But when Charles I was suspected of desiring to use the army for the overthrow of Parliament in 1642 the Houses asserted that the power of the militia ought to be in the hands of parliament. This was indeed one of the causes of the civil war, the King being required to consent to a bill putting the militia beyond his control and refusing to do so. But then England came under the control of Cromwell and of the army, as Maitland put it, “parliament itself becoming (became) the despised slave of the force that it had created”. And so after the Restoration the King’s authority was reasserted by statute* but even then Parliament would not agree to a standing army. Moreover, so far as financing was concerned Parliament insisted upon its approval. Billeting of the militia was illegal. The Bill of Rights provided that a standing army in time of peace was against the law unless consented to by Parliament. Parliament retained a degree of control through the need for financial provision and for many years after the Revolution there was an annual Mutiny Act providing for annual subsidy to maintain an army. It was established by the Petition of Right that the Crown had no prerogative of declaring martial law in time of peace.
Finally, the common law established the following propositions:
(a) the courts are to decide whether a state of war exists so as to justify martial law and the setting up of military tribunals;*
(b) if a state of war in fact exists, as held by the courts, the courts would thereafter have no power to restrain the proceedings of military tribunals;*
(c) if it is held that a state of war does not exist any person injured retains his remedy of habeas corpus or otherwise;*
As Dicey said of Wolfe Tone’s Case: “the Court of King’s Bench once granted the writ. When it is remembered Wolfe Tone’s substantial guilt was admitted, that the court was made up of judges who detested the rebels, and that in 1798 Ireland was in the midst of a revolutionary crisis, it will be admitted that no more splendid assertion of the supremacy of law can be found than the protection of Wolfe Tone by the Irish Bench.”*
The main (although not the only) difference between Roman law and the common law in the area of government was a fundamental difference in philosophy. The common law gave effect to the medieval idea that the King was sub deo and sub lege. That was the message of Magna Carta. In Rome, even during the Republic, the idea of the rule of law was less clear and much weaker and from the Principate disappeared altogether.
To Roman Law we owe the origins of legalism. To the common law we owe the unification of legalism with the rule of law.
B.C. 450-451 The Twelve Tables
367 Institution of the Praetorship.
287 Lex Hortensia: plebiscita becomes equal to leges
242 The peregrine praetorship
242 End of the first Punic War
140 Lex Aebutia
67 Lex Cornelia
17-16 Leges Juliae
A.D. 14 Death of Augustus
134-138 Codification of the Edict by Salvius Julianus
161 Institutes of Gaius
212 Papinian and Paul
223/228 Murder of Ulpian
235 Assassination of Alexander Severus - end of the Classical Period of Roman law.
284-305 Reign of Diocletian
426 Law of Citations
438 Codex Theodosianus
527-565 Reign of Justinian
529 Codex Vetus
533 The Digest
533 The Institutes
534 Codex Repetitae Praelectionis
contra tabulas possession of goods contrary to a will.
secundam tabulas possession of goods in accordance with the will.
Bonorum possessio (where
deceased made no Will) a praetor will grant to certain persons not entitled under civil law, as for example, where emancipated sons were allowed to share with civil law heirs.
Commodatum loan of a res or thing for a specified purpose.
Delict infringement of a mans’ rights to his goods, person or reputation.
Depositum contract whereby a person (the depositor) gives to another (the despositarius) a res to be kept gratuitously and returned on demand.
Ex contractu even where no formal agreement a person who renders a service without having contracted to do so, is nonetheless indemnified.
Locatio conductio contract whereby a person agrees to give to another the use of a thing or his services for remuneration.
Mandatum contract whereby one person gives another (mandatarius) a commission to do something without reward and the other accepts the commission.
Mutuum loan of a money or other fungibles for consumption.
Novatio the re-making of an existing obligation so that it ceases to exist and is renewed as a new obligation.
Res corporales corporeal things.
Res incorporales incorporeal thing.
Res mancipi a thing transferred by mancipation; a fictitious sale taking place before five witnesses and a Libripens who held a balance. This was obsolete by Justinian’s day.
Restitutio in integrum a praetorian remedy of reinstatement granted, … on equitable principles. Given because of fraud, change of status, just error … minority etc.*
Servitude an easement or other right in rem over land.
Usucapion a means by which a Roman citizen could acquire ownership by remaining in possession over a period of time.
In this essay we inquire into how Roman law was transmitted to continental Europe and became the basis for legalism in the civil law.
In his Roman Law and Medieval Europe Sir Paul Vinogradoff wrote: “Within the whole range of history there is no more momentous and puzzling problem than that connected with the fate of Roman law after the downfall of the Roman state. The story I am about to tell is, in a sense, a ghost story. It treats of a second life of Roman law after the demise of the body in which it first saw the light. It is the story of the momentous progress, not inappropriately called the Reception of Roman law.”* The catalyst was the discovery in an 11th century Florentine Library of a manuscript of Justinian’s Digest.
The Digest proclaimed in the 6th century, had from the early 7th century almost fallen into oblivion in Western Europe.* It was this rediscovered Digest, glossed and commented upon as we shall describe, which was the Roman law ‘received’ by Continental Europe. Vinogradoff’s ghost story is the more remarkable because the law embodied in the Digest was that stated by jurists of the 2nd and 3rd centuries, some 300 years before the Digest itself was enacted.*
The impact of discovery of the manuscript was almost immediate. “And when scholars discovered in ancient manuscripts the laws of Rome, of which the very existence had almost been forgotten, the admiration of contemporaries was unreserved and their hopes unlimited. Studious youths flocked in crowds to the universities …”* This was the age of the new universities - Bologna around 1100; Paris, 1170; Orleans, 1230; Padua, 1222; and Salamanca, 1230. Oxford was founded about the same time. The most famous law school was that established by Irnerius at the University of Bolgona. Its curriculum, organisation and examinations became models for later Law Schools. Students came to Bologna from all over Europe. Around the middle of the 12th century there were 10,000 law students in a city of approximately 40,000.
This intellectual excitement coincided with the 12th century European Renaissance. The stimulus was the reintroduction of Greek thought. Greek works, particularly those of Aristotle, preserved by the Muslims and Byzantines, were received and translated into Latin.
Greek thought was accompanied by Greek philosophy. This gave Reason primacy as a source of truth. After almost a thousand years in which revelation and dogma were authoritative a new dynamic had entered European thought. For the next two centuries the aim of theology was to reconcile this plurality of methods for ascertaining truth. This meant accepting, as Abelard taught, that although revelation established the irrefutable truth of Scripture as a totality it included within it many conflicting propositions needing reconciliation.
Re-discovered Greek thought provided the process by which this reconciliation could take place. This was dialectic in which truth was elicited by arguments for and against - sic et non - to adapt the title of Abelard’s famous work. Resolution of inconsistency came about through a higher synthesis embracing contradictions.
This was precisely the same method as was applied in the Law Schools to the newly discovered Digest. Like scripture it contained the legal truth. But the conglomeration of opinions by the Roman jurists covering thousands of legal propositions needed reconciliation.
Greek dialectic swept through the universities and was applied in the law schools to the Digest. Irnerius taught the method of gloss. The glossators thereafter dominated work on the Digest until 1250 when Accursius published the most famous Gloss, the Gloss Ordinaria.
The process of glossing was as follows: The teacher would take the text of the Digest and gloss it - that is interpret it word by word and line by line. His explanations would be written between the lines of the text (glossae interlineares). These notes would be expanded to comments upon the text and would flow into the margins. The process was not entirely exegetical. Different opinions of the various glossators were sought to be reconciled and hypothetical questions arising out of the texts would be discussed in order to reach a final reconciliation.
The great gloss of Accursius, which we have mentioned, brought the work of the glossators to an end. “The Gloss of Accursius both summarised and made obsolete the whole mass of glossatorial writing of the preceding century. For subsequent practitioners the object of study was not so much the Justinian texts as the Gloss of Accursius.”*
One other development about this time, emerging from the discovery of the Digest and Greek dialectic, was the Decretum of Gratian (1140).
The treatise of church law by the monk Gratian was the first completed work on medieval jurisprudence to which scholastic dialectic was applied. The Decretum, modified and supplemented over the next few centuries, became the foundation of church law until 1918.
Gratian was faced with the task of collecting and analysing 3,800 canonical texts which had amassed from papal Decreta, the church fathers and church councils since the 4th century. Attempts at ordering the texts had been made, but reconciliation was not possible before the rediscovery of Roman Legal Science.* Gratian relied upon dialectic, isolating differences and using pro and con, to reconcile them.*
The Decretum’s contribution to legal science lay in the recognition of the relativity of rules. Divine law, natural law, positive law and custom were all ordered hierarchically. In still feudal Europe the elaborate criteria for determining when custom should be recognised were particularly important. Recognition of a customary rule was dependent upon duration, universality, uniformity and reasonableness. The Decretum provided that custom was always subject to natural law and enacted law.
Custom and Roman Law in Medieval Europe
Custom represented the fundamental problem for law in 12th century Europe. Only in England was this problem speedily resolved.
Custom was based upon usage. It was rarely reduced to writing. In fact, except for the church, medieval Europe was largely illiterate. Speaking of France and Germany, Marc Bloch has written ‘in the course of the 10th century the Barbarian laws gradually ceased to be transcribed … there was no more legislation in France … the last ‘capitulary’ dated from 884 A.D. … in Germany one or two measures of fairly general application’.* It was often difficult to know what the customary rule was. Anglo-Saxon doomsmen, juries of Norman England and the lagmen of Scandanavia had all been used to ascertain the customary rule.
The rediscovery of the Digest coincided with an imperative need to reduce custom to writing.
This had become more so because by the 12th century commerce was growing. Cities and towns were expanding. The economic base of society was demanding a uniformity of law which custom could not ordinarily provide.* The Roman law which had been introduced before the Barbarian invasions had, in accordance with the principle of personality, been restricted to Roman citizens. Attempts had been made by the Barbarian conquerors to introduce some codes of law based upon Roman law principles such as Alaric’s Romana Visigothorum (506 A.D.) described succinctly by Vinogradoff as ‘barbarous Roman law’. Whilst Roman law in a debased form survived in Southern France and Italy, Northern France had become feudalised so that the law was very largely what the local seigneur said it was.
Roman law made inroads into customary law. As one commentator, writing particularly of Spain observed, “there was the tremendous technical advantage Roman law had over local law in so many areas by reason of it being not only written and certain, but consistent, complete … built on a sound doctrinal basis, and at the same time so reasonable and detached from specific circumstances as to convince many of its superiority for general use; compared with it local law too often seemed, fragmentary, inconsistent, devoid of an underlying doctrine, in short: primitive.”*
In the south of France, roughly south of a line between Geneva and Bordeaux, a written Coutume Generale based upon Justinian was adopted. It greatly penetrated northern and central Italy. In Spain the ‘reception’ was facilitated by the establishment of the University of Salamanca (1235): the Las Siete Partides, the code promulgated by Alphonso the Wise in 1265 reflected the Roman law of the glossators.
In Germany the law was almost wholly customary from the 9th to the 15th century. By then, with the expansion of trade the situation had become intolerable. Roman law was thereupon introduced en bloc. In 1495 the Imperial Court of Justice was directed to accord judicial notice to Roman law. If customary law were asserted it had to be proved. The justification advanced for formalising the reception in this way was that the Holy Roman Empire was the continuation of the Empire of the Caesars. But a powerful influence also came from the German Universities, founded in the 13th century, which taught only Roman and Canon law. In the Netherlands and Belgium the timing of the reception differed between the Provinces but, with some exceptions, had been completed by the 17th century.
It was against this background that the post‑glossators as they were described, sought to adapt the Digest to contemporary needs, particularly in establishing uniformity. The glossing of the text proved to be too exegetical and tended too greatly to abstraction. Accordingly a new school arose in France supplanting the glossators both there and in Italy. The post-glossators used Roman law in order to integrate customary law of Germanic and feudal origin as well as statutory law into a unitary system. The greatest of post-glossators was Bartolus (1314-57), one of the greatest jurists of all time, who commented upon every part of the Corpus Iuris Civilis, dictated legal opinions and wrote some 40 monographic treatises.
We may sum up to this point by saying that from the 13th to the 16th century the dominant influence throughout Continental Europe was Roman law.* Apart from the intrinsic superiority of Roman law its dominance reflected the influence of the jurists and of the universities, in which they taught and trained.* The inroads Roman law made into feudal, customary and local law of continental Europe was by no means complete. In Scandinavia the process of penetration was halted when the customary law was unified on a national scale.* Attempts, rather in vain, were made in Northern France to codify custom of which the most notable was the Ordinnance de Montil-Les-Tours, 1454, of Charles VII (1403-1461). Northern France was not the only area in which customary law prevailed. The situation was similar in parts of Germany. In addition, the reception varied in the extent of obligatoriness with which Roman law was applied. In Italy, Spain, and Portugal the Roman law of the medieval Doctors became obligatory. Elsewhere, as in France, it was treated as ‘Written Reason’, applicable, but not superior to legislation.
Nevertheless, the broad picture emerges that Continental Europe had succumbed to Roman law because of Roman law’s superiority and the influence of the universities.
Throughout the period we are considering the only law taught at any of the European universities (and this includes England as well as Scandinavia) was Roman law. “Instruction in Roman law remained the basic teaching while national law occupied an altogether secondary place … the administration of justice passed into the control of jurists trained in universities according to the Roman law tradition.”* But it is important to recognise that the Roman law, of which we are speaking, is not the Roman law of Justinian, nor even Justinian as ‘glossed’ by the glossators but Roman law as perfected in the universities. Bartolus (1313-1357), whom we have mentioned, and Baldus (1327-1400) were the predecessors of a continual working through of Roman law over the centuries.
Accordingly, the influence of the universities is fundamental to an understanding of the civil law and the part Roman law played in it. The scholars, in the civil law, played the same role as the jurisconsults in Rome and the judges and barristers in the common law. It was through their juridical work that the legal system was clarified and that it continued to evolve.*
Codification and Roman Law
This was the situation when in the 18th and 19th centuries the codification legal revolution swept Europe and which, under Benthamite influence, even had its impact upon the common law. The first great code was the Code Napoleon which came into force on the 23rd of March 1804. Not only in Europe but codes were adopted in Latin America and Asia by countries escaping colonial rule and by those like Japan and Thailand who had never been subject to it.
What was the effect of this great movement upon the influence of Roman law which hitherto had been dominant on the continent?
At the outset there were good reasons to suppose that Roman law would simply have been submerged in the codification process. It is worth pausing to look at some of the considerations involved in this question.
One factor leading to codification was the movement to national unification. Codes became imperative for Germany and Italy after unification. Roman law seemed incompatible with a new national law. And indeed Thibaut who, in 1814, first called for a German code following the Prussian defeat at Jena described Roman law as the law “of an ancient and dissimilar nation, in the period of its greatest decay”.
One might also have supposed that the emphasis on the national character of the codified law would have been reflected in an equal emphasis on national custom. And it seemed to be that which the great German jurist Savigny was saying, in his response to Thibaut* that “law, like language, was indissolubly connected with the history of the nation”.
But perhaps of more potency than these considerations were the ideas of the Enlightenment which in many ways had generated the codification movement. In a sense these added up to an exhortation to wipe the slate clean. The Enlightenment viewed the morass of existing customary law as in conflict with Natural Law. In the 17th century the Natural Law School had secularised the concept. Natural Law was to be determined by human reason. One should jettison those laws which had grown up merely because of community usage or feudal authority.
Added together these considerations suggested the formulation of an entirely new law embodied in a code* which would be based upon reason. On the face of it this implied that the Roman law formerly adopted in Europe should and would be jettisoned.
It will be observed that the two reasons for supposing Roman law would have been displaced are opposed to one another. On the one hand, there were those who thought the new codes should reflect national law, especially customary law, as it had organically grown in the nation: on the other, that the codes should reflect pure reason, thus excluding the imported Roman law along with custom.
Neither ground for exclusion in fact prevailed.
The natural law school proved not to be as revolutionary as it appeared. It proceeded to identify the natural law founded upon reason with Roman law. “Grotius, in his in Introduction to the Jurisprudence of Holland … does not justify the application of Roman law in the Netherlands on the basis of principle or subsidiary reception of Roman law, but on the basis of conformity of Roman law to Natural Law and to Reason. The same justifications at the basis of the Institutes of Stair (1619-1695), through whose work Scots law was systematised and Scotland very largely penetrated by Roman law in the 17th century.”*
And the vehement protestation of Savigny that the codified law should not be based upon Reason but the Volkgeist, took a curious turn. The unalterable facts were that German law had two sources; ancient customary law and Roman law. But the 16th century customary law of Germany could never have realistically provided the basis for a code: on the other hand, how could Roman law, as an alien law, be identified with the Volkgeist? “Savigny’s answer was that at a certain stage in a nation’s development the creation of law by the People became too technical a process, and further development occurred through a professionally trained class. In Germany that stage occurred in the 15th century, and the jurists who were responsible for the reception of Roman law at that epoch were true exponents of the national spirit. Improbable as the whole doctrine seems, it was, as Kantorwicz remarks ‘the brittle theoretical foundation on which the colossal edifice of the German pandecten recht was enacted by Savigny’ and his pupils.”*
In the result the B.G.B. was much influenced by Roman law and described by one commentator as “that monument to Romanist scholarship which is so little Germanic, the German civil code (B.G.B.) of 1896.”* The reasons for the Codes inevitable dependency upon Roman law for their conceptual foundations are clear enough. The codifiers had no other body of principles to turn to and no other advisers than the jurists trained at the universities in Roman law. The French code was based upon the writings of Domat and Pothier. The German B.G.B. is unthinkable without the systematic theory of the pandectists.
We must remember that for the most part judges could not be looked upon as a source of law on the Continent. Judges in France were identified with the aristocracy and the Parlements and were viewed as enemies of the revolution - and were abolished shortly after it. The whole continental approach was to prevent the judges from interpreting the law and to restrict them to its mere application - thereby prohibiting them from ‘making’ law. Hence it was the jurists and doctrine - doctrine based upon Roman law - which proved to be the major influence in the formulation of the codes.
The legacy of Roman law and the common law
England did not ‘receive’ Roman law. The common law, as a species of legalism was practically home-grown. It comprised “a body of rules newly fashioned by the King’s Justices and developed by their successors in which neither Roman law nor customary law was a decisive or even a considerable influence”.*
The first difference was that a strong centralised monarchy had been established. The Conqueror himself was the most dominant of feudal Kings. The foundations of the common law were laid during the long reign of Henry II (1155-1189). Local and regional customs were not as diverse as on the Continent. “The three main Customs of Wessex, Mercia and Dane-law survived the Conquest but they did not correspond to any political or feudal subdivision. That was decisive. Their decline was inevitable. The surviving Anglo-Saxon law was confined in its operation to the County Court. These were too small to assert independence of the Crown. The Crown’s administrative control of the County was established. The common law quickly followed.”* If this expresses the matter somewhat too crisply, and understates the struggle of the Royal Courts to subdue the ‘intricate network of Local Courts’ (as Maitland termed them) it remains true that the substantial differences between the strength of regional custom in England and on the Continent were important to the non-reception of Roman law.
The chief ways in which the common law was created over the 12th and 13th centuries were:
(i) “Henry established a permanent court of professional judges who were royal servants and the Clerks of Chancery* with the authority and approval of the King introduced a new system of procedure …”*
(ii) No person could bring action in the King’s Courts of common law without a Writ. Each Writ depended upon the availability of the Form of Action relied upon and permitted. The Clerks of Chancery were given a degree of freedom as to the forms of action allowable.*
(iii) The Royal Courts introduced a new procedure of trial - Trial by Jury. This procedure proved popular as against the archaic procedures which had previously prevailed and also differed from the Continental Inquisitorial procedures influenced by Canon Law.
(iv) The judges were originally ecclesiastics but by the time of Edward I (1272-1307) had ceased to be so. They were professionals. But the universities in which Roman law was taught had, by Edward’s time, nothing to do with the legal education of practitioners. The barristers or serjeants who appeared in court and from whom alone the judges were selected, received their training in the Inns of Court.
(v) The developing doctrine of precedent: By the middle of the 13th century judges were beginning to treat, if only in a limited way, previous cases as persuasive so that, in the words of Bracton, “if any new and unwonted circumstances, hitherto unprecedented in the realm, shall arise, then if anything analogous has happened before, let the case be adjudged in like manner, since it is a good opportunity for proceeding a similibus ad similia”.* The Year Books, a record of cases, began to appear before the end of the 13th century. Eventually around this doctrine, a legal science developed and principles evolved.
And yet, although not ‘received’, Roman law played a part in this: English law, in Holdsworth’s words, received ‘small homeopathic doses’ of Roman law ‘as and when required’.
The glossator, Vacarius, taught Roman law at Oxford in the first half of the 12th century. This Roman law influence was evident in Glanvil, the first book on English law written towards the end of the 12th century and is partly based on the Preface and introductory chapters of Justinian’s Institutes. Bracton’s De Legibus, a far more substantial work, was completed in the reign of Henry III (c.1256). Bracton was one of Henry’s justices and an ecclesiastic. Bracton was clearly influenced by Roman law which came to him through the glossator Azo. He drew on it particularly in relation to the law of personal property and contract. More generally, Roman law provided a terminology and method of reasoning which enabled Bracton to supplement his great work. But that work was a work of the common law.
In the centuries following Bracton’s death Roman law had limited influence. It was still taught at Oxford and Cambridge but these played no role in the legal education of practitioners. Such influence as Roman law had, came chiefly through the Ecclesiastical and Admiralty Courts. It had little effect on the common law itself. But occasionally Roman law doctrine was drawn upon by the judges: an example is that of Coggs v Bernard (1703) in which Lord Holt settled the law of bailement.
There remained one final attempt by the civilian lawyers and ecclesiastics in the Tudor period to introduce Roman law. But this was repelled.
We may sum up by quoting Holdworth’s judgment more fully:
“We have received Roman law; but we have received it in small homeopathic doses, at different periods, and as and when required. It has acted as a tonic to our native legal system, not as a drug or poison. When received it has never been continuously developed on Roman lines. It has been naturalised and assimilated; and with its assistance, a wholly independent system has, like Roman law itself, been gradually and continuously built up, by the development of old and the creation of new rules to meet the needs of a changing civilisation…”*
We are concerned with codes in societies in which legalism is the dominant legal order. Codes in such a society are usually intended to be a definitive re-statement of the law or part of it. Such codes, although emanating from the legislature or other external source, are consistent with legalism. The purpose may be to provide a fresh start in some hitherto autonomous area of the law. The need for this may arise from the tendency of the autonomous element in legalism to technicality. This was especially so in Rome where the autonomous system by which the law developed lacked sufficient imperative authority. It was this which led Augustus to proclaim the ius respondendi giving certain favoured jurists a degree of authority.
But codes may be introduced into legalism not for the purpose of rejuvenating the autonomous system. The object may be to extinguish the system altogether and transform the law into a regulatory legal order.
That was the initial purpose of Justinian’s code. It first put together a statement of the law in classifications which were essentially juristic. It was to that point clarifying and updating the existing system. From this it would have been possible for the code to have been developed juristically through the formulation of principles, rules and sub-rules derived by deduction from the text.* But that was not Justinian’s purpose. He wanted the code to be definitive and for future laws to be made by statute or decrees. There was to be no more juristic development through commentaries which he forbade on pain of heavy penalties. It is one of the ironies of history that released from the Emperor’s command his code became, after five centuries, the genesis of European legalism.
The modern era of codification also originated with the aim of eliminating legalism.By the late 18th century it was believed that all law should be embodied in legislation. The sole function of the Judge, it was maintained, should be to give effect to the will of the legislature. This was so because because the legislature, in accordance with the theory of the social contract, represented the people through the ‘general will’. It followed that to interpose judicial interpretation was to allow a non-legitimate element to enter the process. Before the Revolution there was a very real fear in France of judicial usurpation of law-making. This was particularly the case with respect to the operation of the Parlements.
The purpose of the Allgemeine Recht, Frederick II’s code, promulgated in 1794, was to stamp out judicial interpretation. The code sought by thousands of articles to minutely regulate everything. It specifically prohibited judicial interpretation. In case of doubt the issue was to be referred to a Statute Commission.
Julius Stone has explained* that “the revolutionary doctrine, indeed, in which the French codification project was conceived, assumed that the nearer free government approached, the more tightly should judges be held to a mechanical application of la loi. This was pushed so far that Judges were forbidden in 1790 to interpret the law, being directed in case of doubt or omission in la loi, to refer the matter to the legislature, and the function of the superior Court of Cassation was conceived to be that of disciplining judicial liberties with la loi, and acting as a channel for the reference of doubtful points to the Legislature.” It was entirely in accord with this approach that the Statute of the Cour de Cassation of 1791 laid down that when giving reasons for judgment the Court should state the article of the code on which it had based its decision.
But the attempt to exclude judicial creativeness failed quite early. Article 4 of the Civil Code (1804) provided that where the code was silent it would be an offence for the Judge to refuse to decide the case. There was thus a contradiction between the underlying theory of exclusive paramountcy of the legislature and the requirement for the judge to decide a case if there were a gap in the legislative provisions. In the result the Civil Code itself required law making.
In the early years of codification there was an antipathy towards doctrine similar to that shown towards judicial jurisprudence. This was significant because it was Roman Law, elucidated and defined in doctrine by the scholars, which had constituted the ius commune upon which all the codes were based. But the theoretical difficulty lay in giving to doctrine any kind of authority if by doing so it would thereby qualify the supremacy of the legislature.* This opposition to doctrine did not last. Doctrine became and has remained an important source of law on the continent.
And so the approach developed of “building out of Articles of the Code principles and conceptions not actually contained in it, but treated as if they were, and used as premises for deducing the legislator’s will just as if they were”.*
It is evident though that doctrinal development in the civil law was integrally connected with the interpretation of the codes and thus with the methods of interpretation. This was so because of the fundamental primacy of legislation as a source of law. Every legal solution needed to be linked in some way to the code.
As with the common law the primary rule of construction was the grammatical meaning of the text but, in contrast with the common law, the civil law Judge could refer to other provisions in the code to draw from them an analogy or difference.* Or, alternatively, the Judge might refer to the legal system as a whole to draw from it a correct construction.
The Italian code provisions formalised this. Under Italian law the Judge must interpret the applicable norm. If there is a ‘gap’ or lacuna he cannot escape dealing with it.* Article 12 of the Italian Provisions of the Law in General provided that “ if a controversy cannot be decided by a precise provision, consideration is to be given to provisions that regulate similar cases in analogous matters, if the case still remains in doubt, it is decided according to the general principles of the legal order of the State.” This rule is to be found explicitly stated in a number of codes.*
In the case of the German B.G.B. the Judge was required to adhere to the text of the Code or to dogmatik – that is he was required to interpret it in accordance with the text or if there were none, then, within the dogmatic or conceptual framework of the code. This freer interpretation was furthered by section 242 of the BGB (the good faith provision) which allowed for hard cases being mitigated by equity. In the case of the French code the doctrine of abuse of rights under which a person could commit a faute in the way in which he exercised a right had much the same liberalising effect on the construction of the code.
We may conclude therefore that a code is not necessarily contrary to the autonomous development of the law which has been essential to legalism historically. The code might well provide the foundation for a legal system which thereafter is intended to be capable of continuous development.
Roscoe Pound explains the position and sums up the answer to our inquiry:
“The purpose of a code is … primarily to provide so far as possible a complete legislative statement of principles so as to furnish a legislative basis for juristic and judicial development”.* That development consists of a “process of building out of the articles of the code principles and conceptions.”* (italics added)
This is sufficient for the purpose of our inquiry. We may though touch upon the further question which is how a codified system copes when faced with “swiftly moving social, economic and technological changes” undreamt of at the time of the code’s formation and for which it does not in terms cater.
A codified system demands that all jurisprudentially evolved principles should be referable to the code. What though is to be the position in a codified system of law when the code cannot be extended in this way to the legal situation in question? In a work published in 1900 a distinguished French jurist, Professor Geny, deplored the spurious attempt to solve the problem by attributing a fictitious will to the legislator when applying the French Code. His influence was immediate. The Chief Justice of the Court de Cassation, addressing a ceremony at the 1904 centenary of the Civil Code, rejected the historic method of construction, saying that “the Judge would no longer be bound by the actual or presumed intent of the original legislator.” The 1907 Swiss Code sought a solution in Article 1 (2) of the Code which provided that “ if the Code does not furnish an applicable provision, the Judge will decide in accordance with customary law and, failing that, according to the law he would establish as legislator”.
None of this affects our inquiry as to the extent to which a code is compatible with legalism but it does upon the related question whether legalism itself has to be abandoned when extreme social and economic change transcends the code. It was natural in a codified system that a solution to this should be sought in new methods of interpretation of the code.
Professor Geny’s ultimate solution was that when no legitimate construction of the code could apply to a legal situation the Courts would have to find ‘a just balance of conflicting interests. In doing this the Courts must “estimate their (the conflicting interests) respective force, weigh them in the scales of justice, so as to give preponderance to the most important of them, tested by some social standard and finally bring about an equilibrium”,*
Whilst this may be wise advice to a legislator this large discretionary criterion is hardly conformable with the constraints of legalism.
By definition statutes, like codes, are external to the autonomous element in legalism: in almost all periods of Roman and common law legalism statutes have been superior in authority to unwritten law* and the legal efficacy of legislation has not depended upon conformity with the underlying system.*
It is very difficult to form a juridical system out of a collection of statutes. As Maine pointed out statutes depend for their obligatoriness on their authority not on the principles by which they were enacted.* Accordingly, because the command or prohibition derives its force from its own terms there is a natural disinclination to look away from its precise provision to more general principles which may be deduced from it. English law exemplifies the difficulty. There was an attempt in the 16th century to depart from what a statute said to the principles it was thought to embody. The principal author of this idea, Plowden, said that “if the law maker would have followed the equity, notwithstanding the words of the law … you may safely do the like.”* Plowden’s doctrine of the equity of the statute never gained acceptance and could never have done so without departing from the principle that the words of the statute and not its spirit or underlying principle must be controlling.*
Nevertheless legislation is not per se opposed to the autonomy of legalism. A statute may be designed to correct a flaw or clarify the law when it has become encumbered with technicality.
In determining whether a statute is compatible with legalism the questions to be asked are (a) whether the subject matter of the statute – the rights and obligations it creates – predicates the continued existence of the system in the field of law to which the statute relates and (b) (which is not the same thing), whether the statute is designed to permit the autonomous development of the law within that field.
In Rome during Republican and classical times the law was primarily juristic. Leges, senatus consulta and constitutions were comparatively rare.* A selection of statutes passed during this period shows how easily each fitted into the system developed by the jurisconsults and praetors: the Lex Plaetoria (326 B.C.) providing restitutio in favour of minors; the Lex Aquilia (286 B.C.) the law relating to wrongful damage to property; the Les Atinia (198 B.C.), restricting acquisition of property in stolen goods by prescription; the Lex Falcidia (40 B.C.), heir to receive one quarter of clear proceeds of an estate; the Lex Julia de Adulteriis (18 B.C.) father compelled to give dos to his daughter on marriage; senatus consultum Velleianum (46 A.D.) women prohibited from undertaking to answer for debts of others and the senatus consultum Macedonianum (69 A.D.) denying an action for repayment of a loan made to a son in his father’s power on the basis of expectation of the father’s death, except in the case of necessaries all exemplify this.
The Lex Aquilia affords an interesting example of how a statute can, not only be integrated into the system, but become a source of further juristic development. The Lex Aquilia was an old plebiscita (286 B.C.) relating to damage to property. It was made when Rome was a small agricultural society. Juristic development of the Lex Aquilia occurred through interpretation and by praetorian analogy. According to the text only the actual value of the thing could be recovered. Interpretation by the jurists allowed consequential damage as well.* Whereas the statute mentioned only damage to the owner the praetors allowed recovery to those with a more limited interest in the property, as for example, a usufructuary.*
In turning to the common law we find in the earlier centuries statutes on the law of property were integrated into the law and the principles of tenure and estates upon which that law was based. Medieval statutes such as the Statute of Quia Emptores (1290) forbidding subinfeudation* and the Statute de Donis Conditionalibus (1285) by which a donee could alienate land to bar the right of nominated issue to take (thereby resulting in a new kind of inheritable estate restricted to the class of heirs specified in the instrument) were indeed very important to the law of property. They had to be fitted into the medieval property law by judges, property lawyers and conveyancers. This they did, without the system being threatened.
The Settled Lands Act 1882 is a later example of a major change in the law of property without change in the system. Land was tied up by settlements. The life tenant in possession had all the appearance of ownership, but he could not dispose of any interest in the land, at least beyond his death. The Settled Lands Act met this problem by allowing the life tenant to sell but ensured that, in substance, the fund resulting from any sale was held upon the interests set out in the settlement. In short, all the incidents of the law of property were preserved. Only a power of sale was conferred.
We see the same integration in other fields of law. Thus the Wrongs Act (Lord Campbell’s Act 1846), overruled Baker v Bolton* so as to confer limited protection to dependents for death of a near relative. Such an Act merely corrected an anomaly in the law of torts.* Similarly the abolition by statute* of the doctrine of common employment,* denying recovery to an employee against and employer for injury by negligence of a fellow worker and the ‘all or nothing’ rule in civil actions where the plaintiff had been guilty of contributory negligence* by the Law Reform Contributory Negligence Act 1945. Again in contract law the abolition of the rule that where a contract was discharged by frustration the loss lay where it fell.*
None of this legislation affected the existence of the system or its dominance. It was not that the statutes were socially unimportant – the abolition of the doctrine of common employment had significant financial implications for industry – but, in terms of the system as a whole they were mere correctives. Autonomous juristic development went on taking account of the statutory modifications. It was not prevented nor was it intended that it should be.
But we come by way of contrast to a medieval statute concerned with the rights and obligations created by Equity* which had, as its explicit purpose the stifling of juristic development in an entire field of law – the law of Trusts. This was the Statute of Uses (1535).*
Since the 13th century English law had developed the idea of the Use which ultimately became the trust and played such an important part in the commercial and property law of the common law countries. Its origin in the 11th and 12th centuries arose simply in the owner parting with control of his land by a mere personal arrangement to one who would hold on his behalf. A relationship of mere agency was created which would not have enabled owners to escape the multitude of feudal dues accruing on death. The Use which was created by equity out of this agency relationship enabled testamentary dispositions to become effective and feudal obligations to be avoided.
By a juristic development which successive Chancellors brought about, grantees of a Use were vested with an equitable estate in the land. They did not hold the legal estate but their interest could not be overreached except by a subsequent purchaser of the legal estate for value and without notice of the equitable interest in the land. This was the juristic achievement of equity
The Statute of Uses was intended to end this – indeed, in the language of the preamble, it was intended ‘to extirpate’ it. It did so by abolishing or, as it was said, executing the Use, so that a conveyance to use passed the legal estate.
Uses had deprived Henry VIII of much needed feudal dues. He was ‘pursued by the spectre of poverty’.* The simplest solution was to eliminate the use altogether. In the result “the Statute of Uses was forced on an extremely unwilling parliament by an extremely strong-willed King. It was very unpopular … the King was the one person who had all to gain and nothing to lose by the abolition of uses.”* It was immediately successful and if that were all there was to the matter the Courts of Equity could never have developed the concept of the Trust.
But the system rebelled so to speak. Within a century the courts had devised means to circumvent the Statute. By 1634 in Sambach v Dalston* the courts held, that in a conveyance of a use upon a use the ultimate use conferred an equitable estate.* And thereafter through this device the whole law of trusts was developed juristically. Thus, the attempt to ‘extripate’ the system failed.
In addition to considering how the subject matter of statutes relate to the common law we need to look at the way statutes have been interpreted. In this way we can see the extent to which the Judges sought to treat statutes as part of the system or as outside it.
Before the Revolution (1688) had definitively established the supremacy of parliament there was a period when the courts asserted the power to ‘control’ statutes.* Suspicion of statutes survived the Revolution. Writing in the 18th century Blackstone said “for to say the truth, almost all the perplexed questions, almost all the niceties, intricacies and delays (which have sometimes disgraced the English, as well as other courts of justice) owe their original not to the common law itself, but to innovations that have been made in it by Acts of Parliament” resulting in it’s ‘symmetry being (has been) destroyed’ and ‘its proportions distorted’.
It is not difficult to understand, given this attitude, that the courts should have established a rule of construction that statutes were presumed not to contradict the common law. In his Essays in Jurisprudence and Ethics Pollock said ‘some of our elaborate rules for the judicial interpretation of statute cannot well be accounted for except on the theory that parliament generally changes the law for the worse, and that the business of the judges is to keep the mischief of its interference within the narrowest possible bounds.’
Statutes were thus, in this earlier period, interpreted so as to conform with the common law if the words allowed it. Statutes creating criminal offences were deemed to have required proof of intent unless that was expressly excluded, R v Tolson.* This was explained by Dixon J in Proudman v Dayman*, “The strength of the presumption that the (mens rea) rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law it is natural to suppose that it is to be read subject to the general principles according to which that law is administered.” (italics added).
Where statutes are interpreted according to their purpose rather than literally, it is much easier for them to be harmonised with the system. This is the more so when the language of the statute is general rather than detailed and specific. In such a case principles can be developed and applied deductively from the statutory provisions in question.
The substantial codification of commercial law in England at the end of the 19th century was legislation of this kind. The Sale of Goods Act 1893 which sought to amend and codify the law of the sale of goods provided that “save, insofar as they are inconsistent with an express provision of the Act, the rules of the common law, including the law merchant, shall continue to apply to contracts for the sale of goods”.* The English Partnership Act 1890 was declaratory of the rules of common law and equity and these were preserved except insofar as they would have been inconsistent with the Act. The Bills of Exchange Act 1882 codified the law of bills of exchange, cheques and promissory notes embodying the essential principle of negotiability and defining when title to a negotiable instrument could be acquired. This Act too provided that “the rules of law, including the law merchant, save insofar as they were inconsistent with the express provisions of the Act, should continue to apply”. The law of marine insurance was also codified by the Marine Insurance Act 1906.
This codifying legislation was clearly intended to form part of and be incorporated within the existing common law system, re-starting it in the areas covered by the legislation, in the sense that, the terms of the legislation would become the point of departure and were to be integrated in that way.* Speaking of the Marine Insurance Act, Halsbury* stated “the Act, however, embodies only some and not all of the legal principles and rules of marine insurance and its language is so extremely concise and general that its full import and meaning can scarcely be understood without referring to the existing law which it was intended to express, or to the decided cases from which that law was evolved … for these reasons it will generally be necessary … to ascertain the law before the date.”
And so statutes codifying the common law were intended to preserve it, in regard to the subject to which they related, as part of the system except for up-dating modifications. Moreover, interpretation by the courts has been of such a kind as to ensure harmony with the common law system.*
During the 19th century, and especially in its latter half, a period of accelerated legislative activity began which has continued to this day. At first this legislation, even major legislation, was not designed to supersede the system. It was fitted into it, sometimes quite ingeniously as with the introduction of the Torrens system of land title.* In other instances the statute created a new juristic entity as was the case with the modern joint stock company. Existing concepts – trust and agency – could not meet the needs of industrialised economies for an entity which permitted capital to be aggregated. The joint stock company, separate from its members, was the statutory result. With some initial difficulty* the Companies Act 1862 and its successors allowed for extended juristic development of the new concept.
But with the 20th century came dramatic change, not just in the vastly increased number of statutes – although there was that – but in the different kinds of statutes. These statutes were directed to regulating some field of activity for the protection of the public or a section of it. They were not concerned with the creation of individual rights and obligations or at least if they did so, that was incidental. Legislation was enacted in fields such as town planning or the environment protected interests never protected by the common law. In some instances the legislation was framed around common law concepts but these were used so differently as to transform their legal effect* or reconstruct the concept.*
* From the Abbasid Caliphate (750 AD) authority in Islamic law devolved upon the jurists who replaced the Qadis or appointed Judges. Influenced by the newly discovered Greek logic, the jurists introduced the use of reason in the interpretation of both the Koran and the sunna, and permitted, within limits, ra’y, or, personal reasoning, in the development of doctrine. Qiyas or the use of analogies to ascertain a rule became permitted.
The liberality of interpretation which this entailed was opposed – sometimes vehemently – as a departure from the Holy Word of God. The jurists became divided into four schools. Eventually, in the 10th century, these schools reached a compromise which involved putting an end to the further development of Islamic law by juristic processes. The ‘gates of ijtihad’ were, as it was said, finally closed.
Jewish law may be said to have begun with the canonisation of the Torah in 445 BC by Ezra and Nehemiah. From the oral explanations of the Midrash in the synagogues a process of interpretation inevitably began but remained oral to distinguish it from scripture. The Oral law was gradually committed to writing. The recording of the oral law in the mishnah was unsuccessfully opposed by the Sadducees as desecrating the Torah. In the 2nd century Judah Hanasi sought to canonise the mishnah but his attempt to do this failed. In the 6th century scholars were entrusted with writing down the mishnah and gemarra and these evolved into the Talmud which governed Jewish law for centuries. Finally, in the 12th century the rabbis closed further evolution of the Babylonian Talmud.
We see in this oversimplified description the continuing tension between text and interpretation, exegesis and the deployment of legal science.
Church law in Europe was heavily influenced by legalism. It did not however face the same difficulty as Judaism and Islam in reconciling the use of legal science with the sacred character of the text. Christianity never intended to override secular law. From the outset the separate spheres of God and Caesar were recognized, see, David and Brierley, Major Legal Systems in the World Today, 2nd edit.p.429. In the 12th century Gratian, a Bolognese monk collected all the laws of the church into a single work, A Concordance of Discordant Canons. It was the first comprehensive and systematic legal treatise in the West since Rome. The method was thoroughly legalistic. It was ‘systematic’ in the sense of breaking up the law into interrelated categories – divine Law, natural law, the law of the church, the law of Princes, custom etc. It was, without question, one of the major works in European legalism.
* 450 B.C. –27 B.C.
* 27B.C. - 284 A.D.
* See The Origins of Western Legal Science, Harold J. Berman (1977) Harvard Law Review, p.894.
* Science and Judicial Proceedings included in Jesting Pilate, Law Book Company (1965) p.13.
* This proved particularly important in the long historical process of the common and civil law in subduing custom. Legalism eventually enabled formal law to supersede feudal law and local custom. In some cases this was done by substituting a legal rule found to be applicable and in others by formalising the customary rule, as in the common law, see Halsbury, Laws of England, 1st edit,Vol.10 p.28 and p.221; or, in the civil law, by the attempted codification of the coutumes, in France, or the formal reception of Roman Law in Germany. In English law, the process by which custom became formalised within the framework of legalism was described in Goodwin v Robarts ((1875)L.R. 10 Ex. 76 affd. H.L. 1 A.C. 476) in relation to the law merchant: “ The law merchant… is… neither more nor less than the usages of merchants and traders in the different departments of trade, ratified by the decisions of Courts of law, which have adopted them as settled law, with a view to the interests of trade and public convenience … Courts of law giving effect to contracts in dealings of the parties will assume that the latter have generally dealt with one another … of any custom or usage prevailing generally .. by this process, which was before usage only, and sanctioned by legal decision, has become engrafted upon, or incorporated into the common law, and thus be said to be part of it.” In Roman law the customs known as the maritime law of Rhodes were, by a similar process, adopted into law.
* An interesting illustration of the intrusion of a different legal order into another order which is predominant, is that of bankruptcy in common law countries. Bankruptcy is an example of a regulatory element introduced into the predominant legalism of those countries. It is not merely that it is purely statutory – there is no common law of bankruptcy – but the implementation of the law, with official receivers and trustees in bankruptcy, exemplifies a regulatory legal order, See Halsbury,1st edit. Vol 2 p.4.
* H. Mc Aleavy, Chinese Law in Introduction to Legal Systems, J. Duncan Derrett, Sweet and Maxwell, p.10.
* see, infra, the essay Codes, Statutes and the Autonomy of Legalism.
* The tradition of legalism before the revolution in Russia was weak but it was nonetheless the prevailing legal order, H.J. Berman, Justice in the U.S.S.R, Harvard, p.268; David and Brierley, Major Legal systems in the world today, Stevens, p.152. After the Revolution, Soviet law was highly regulatory. Economic activity after 1928 was governed by the Plan. It was thus necessary that what were described as contracts should fit into its requirements. State Enterprises were subject to standardised conditions. If an enterprise declined to enter into contracts required of them by the Plan they could arbitrate the issue before the Arbitrazh. Ultimately, though, a contract would have to be entered into. There was no development of Soviet law independently of the state, see generally Berman, supra and W. Friedmann, Legal Theory, Stevens, p.257 et seq.
* H.McAleavy Chinese Law.op.cit.p.105; W.F. J. Jenner, The Tyranny of History,p.137.
* V.Sovani, The British Impact on India, The New Asia, Mentor, pp.111-113.
* A Glossary and Chronology appear at the conclusion of this essay.
* Schulz, History of Roman Legal Science, Oxford, p.286.
* The power of the father.
* De Zulueta, The Legacy of Rome, Oxford, The Science of Law, p.188.
* The term ‘Jurists’ is used interchangeably with that of ‘Jurisconsult’ when we are speaking of the Republic. The Jurisconsults were advisers. Later in the Principate, Jurists came to refer also and mainly to writers and teachers.
* This was to change and the change was important. During the Principate, and especially the later Principate (and even more so during the Dominate) the jurists not only received salaries but were public officials in the Concilium of the Emperor.
* On the downfall of the monarchy the kingly power was vested in the two consuls. Like the royal power, the imperium of the consul was formally unlimited (except for certain religious matters vested in the pontifex maximus). In theory therefore jurisdiction was always a function of the consular imperium but when a special jurisdictional magistracy - the praetorship - was created, the consuls ceased to have any concern with civil litigation and criminal jurisdiction was exercised on their behalf by the quaestors, Jolowicz, op.cit. pp.43-46.
* The praetorship was established in 367 B.C. by the Leges Licinae Sextiae. The new magistrate assumed responsibility for the judicial work of the counsuls, Jolowicz, op.cit. p.15.
* The praetors had some legal knowledge. Allen, Law in the Making, Oxford, 4th edit, p.159 expresses the view that the legal ignorance of the iudices has been exaggerated but Sawyer’s statement that “they needed a jurist to give authoritative advice or a responsa, to help them” seems clearly correct, see Sawyer, Law in Society, Oxford Clarendon Series, p.75.
* The Licinian laws, see supra.
* This did not however include military command.
* Thus the Treaty of commerce between Rome and Carthage, 348 B.C.; the Samnite Wars (involving subjugation of the Latins and Central Italy), 343-266 B.C.; the conquest of Southern Italy including Tarentum, 281-275 B.C.; peace with Carthage involving the cession of Spain and acquisition of provinces in Macedonia and Greece, 148-146 B.C.; Africa, 147 B.C., Gallia Transalpina, 120 B.C., Gallia Cisalpina, 87 B.C., Pergamum in Asia Minor, 129 B.C. and Syria, 63 B.C.
* “The strict theory of Roman law which remained throughout its history was that the ius civile was only for citizens, and, as there was originally no other law than the ius civile, the foreigner was both rightless and dutiless. It was open to any Roman to seize him and his property as things without an owner and, on the other hand, there was no court in which he could be sued. Whether there was ever a time at which practice was entirely in consonance with this theory may be doubted, but at any rate as soon as intercourse with other states became at all common and civilisation advanced, such a barbarous system could no longer be maintained … quite apart from special treaties, the foreigner was no longer treated as rightless; to treat him so would have been to put a stop to the possibility of commerce, and the commercial interests of Rome were growing. We have seen that about 242 B.C. a special praetor was appointed to deal with disputes in which foreigners were engaged, and from our accounts there can be no doubt that the single praetor had been dealing with such cases as well as those in which citizens were involved for some time previously”. Jolowicz, op.cit. p.100.
“Peregrini could not employ the Roman law of procedure except by Treaty rights or fictitious actions, Buckland, Textbook of Roman Law, p.98… a long time elapsed before Roman law concerned itself with disputes simply ‘inter peregrinos’ at all. But Roman law would, from the very first contact with peregini, be concerned with litigation between them and Roman citizens; and hence the treaties relating to ius commercium that were made. But apart from such treaties, disputes might well arise between civies and peregini not covered by them.” Gilbert, Res Judicatae Oct 1939, p.50.
* The traditional explanation is that the praetor peregrinus was appointed for this purpose. But Gilbert, supra, convincingly argues that the increasing presence of peregrini was not the reason for the appointment of the additional praetor but that his appointment was due more simply to the additional quantity of work. It was then a natural administrative division for the praetor urbanus to deal with disputes between citizens and for the additional praetor to exercise jurisdiction involving foreigners.
* It has been said that the legis actiones were abolished by the Lex Aebutia and by the later Leges Juliae. The date of the former is uncertain but was around 149 B.C. The Leges Juliae were enacted during the reign of Augustus. Jolowicz explores this question very fully in his Historical Introduction to Roman Law. He concludes that the formulary system “arose in courts where the Roman magistrate exercised jurisdiction over foreigners and his imperium was consequently untrammelled by any lex, either … in that of the praetor peregrinus at Rome, or those of the governors of the provinces”, Cambridge, 1931, pp.223-229. In his view a more difficult question is how the formulary procedure came to be extended from peregrini to citizens. What happened, he believes, is that the Lex Aebuitia made the formulary procedure optional for citizens. Later, the Leges Juliae did away with the Legis actiones altogether leaving the formula as the only available procedure.
* Jolowicz, op. cit., p.201.
* Sawyer, op. cit., p.75; see also Jolowicz, op. cit., p.202.
* Jolowicz, op. cit., p.203.
* The Legacy of Rome, The Science of Law, Oxford, de Zulueta, p.191.
* Jolowicz, op. cit., p.416.
* Gibbon has described the process as follows:
“But the most important source of Roman law was the edicts of the praetors. As soon as the praetor ascended his tribunal, he announced by the voice of the crier, and afterwards inscribed on a white wall, the rules which he proposed to follow in the administration of justice. It was not according to his caprice that the praetor framed his regulations. The most distinguished lawyers of Rome were invited by the praetor to assist in drawing up this annual law, which, according to its principle, was only a declaration which this magistrate made to the public, to announce the manner in which he would judge, and to guard against every charge of partiality. He was bound strictly to adhere to the letter and spirit of his first proclamation, according to the Cornelian Law, and he could make no change in a regulation once published. It is a mistake to suppose that the praetors had the power of departing from the fundamental law, of the law of the Twelve Tables. The people held them in such consideration, that the praetor rarely enacted laws contrary to their provision; but as some provisions were found inefficient … the praetors, still maintaining respect for the laws, endeavoured to bring them into accordance with the necessities of existing time, by such fictions as best suited the nature of the case.”*
History of the Decline and Fall of the Roman Empire, Chap.23, p.375.
* See Glossary for a description.
* Jolowicz, op.cit., p.211.
* Jolowicz, op.cit., p.255.
* The restitutio in integrum was a praetorian remedy of reinstatement granted on equitable principles.
* 286 B.C.
* Hunter, Historical Introduction to Roman Law, p.146.
* The edict announced, “If it be alleged that fraud has been committed and there be no other remedy available on the facts, and the cause of action appears to be a just one, I will grant an action, provided that not more than a year has passed since the proceedings might have been begun”, Jolowicz, op.cit., p.204.
* The Legacy of Rome, The Science of Law, Oxford, Zulueta, p.194.
* History of Roman Legal Science, Oxford, p.41.
op.cit., p. 94. The Mucian order which was followed substantially by Gaius in his Institutes was in summary as follows: Law of Inheritance, Law of Persons; Law of things and Law of Obligations. Each of these general classifications was further subdivided. Thus the Law of Obligations was divided between ex contractu and ex delicto. The former included (a) the real contracts; (b) sale; (c) locatio conductio; (d) servitudes; (e) societas and perhaps mandatum. The latter comprised iniuria, furtum and Lex Aquila. See Glossary.
* Schulz, op.cit., p.99.
* Schulz, op.cit., p.101.
* Schulz, op.cit., p.104.
* Schulz, op.cit., p.107.
* Kolbert, The Digest of Roman Law, Penguin Classics, p.27.
* 161 - 180.
* Indeed he was supposedly paid twice the usual fees because of his great learning. Kolbert, op.cit., p.29.
* Kolbert, op.cit., p.29.
* Jolowicz, op.cit., p.394.
* See infra.
* There is controversy as to the date. See Kolbert who prefers 223, op.cit. p.31.
* Gibbon describes the Praefectus Praetorio in the following terms: “From the time at least of the Emperor Hadrian the Praefects of the Praetorian Guard are considered the first individuals next to the Emperor. The Prefect was, from the nature of his function, the official who was nearest to the monarch; he was trusted because he was feared and the execution of the Emperor’s most important commands required a man of something more than military capacity. This alter ego of the Emperor was the medium for executing rapidly issued injunctions for army organisation, and for the guidance of the civil service. Jurisdiction, the most constant of the Emperor’s burdens and the framing of decrees, not unnaturally fell to his share, and hence the office, without losing its ostensibly military aspect, assumed more and more of a civil character. This change, which began under Marcus Aurelius and Commodus, was finally achieved after the time of Septimius Severus; henceforth we find the first jurists of the empire, Papinian, Ulpian and Paulus - filling the praefecture. It was probably about this period - the end of the second and beginning of the third century A.D. - that the constantly delegated jurisdiction of the Emperor resulted in the praefects becoming the Supreme Court of Appeal, in matters both civil and criminal, for the provincial world. The growth of his power and parallel to that of the imperial council of legal advisers, of which the praefects were the presidents; and the importance of both presidents and council, originating with Hadrian, was due to that personal centralisation of authority, which the necessities of the defence of the empire had made independent, of a fixed constitution and even of a fixed capital.” Gibbon, Decline and Fall of the Roman Empire, Appendix to Chapter II, Note 2.
* Modestinus, a pupil of Ulpian, continued with some modest juridical work until 244 A.D.
* Jolowicz, op.cit., p.418.
* See Glossary for a description of the term.
* See Glossary for definitions.
* Jolowicz, op.cit, pp.421-422.
* “Anyone who has the most elementary knowledge of Roman Law knows that the Romans hardly developed a general law of contract. They thought in terms of particular contracts such as sale, hire or partnership, and those contracts were limited in number. Although it was possible to make contracts which fell outside these typical figures, a deliberate effort was required; and indeed the Roman law of the ancient world never accepted the doctrine that any seriously intended promise, however lacking in form, was binding. “The Rational Strength of English Law, Hamlyn Lectures, F.H. Lawson, p.49.
* Schulz, History of Roman Legal Science, p.112.
* It performed a similar function to the English doctrine of precedent with the important difference that the authority of precedent was laid down internally by the courts themselves.
* Jolowicz, op. cit., p. 363.
* Jolowicz, op. cit., p.370.
* The history of the Emperor’s legislative supremacy is compendiously summed up in the following passage by a writer whose name is not known. “By the end of the Republic, when the empire had become a vast area, popular Assemblies of the old type had become impractical and early in the Empire, by no act of legislation, but by the Emperor’s influence legislation passed to the Senate, which was now substantially nominated by him. Its enactments, senatus consulta, show a gradual transition from instructions to the magistrates, which had always been within the province of the Senate to direct legislation. Here, too, the measures were proposed by the presiding magistrate, who was the Emperor or his nominee, so that the Senate had even from the first, very little independence. And when in the second century the Emperor claimed to legislate directly, senatus consulta soon ceased to be ultilised: thenceforward the emperor was the sole legislator.”
* Schulz, op. cit., p.286.
* The first Code, the Codex Vetus, was a collection of constitutions of leges generales enacted since Constantine. It was largely an updating of Theodosius’s Collection (439 A.D.) and was completed in 529 A.D. A further collection of 50 Constitutions, known as the 50 Decisions (Quinqua Ginta Decisiones) was intended to dispose of controversies arising out of interpretations of the jurists. But a further collection was needed. The Code (the Codex Repetitiae Praelectionis) was about half the size of the Digest and contains about 5,000 enactments, the earliest of which was made in the time of Hadrian. However, legislation refused to stand still. No sooner had these codifications been completed that the Emperor and his advisers were confronted with more and new enactments. Because they were ‘new’ - in the sense of having become law since the Code - these were collectively described as the Novellae Constitutiones. It was intended to collect and publish these new enactments from time to time, but work on this ceased in about 540 A.D.
* Jolowicz, op. cit. p.328. During Nerva’s reign (96-98 A.D.) jurists were invited to become members of the Emperor’s Concilium.
* “If the transference of plenary sovereignty to the emperor is a slow process, the process may be traced in the reign of Hadrian. As he sought to deprive Italy of its primacy, so he began to divest the senate of its partnership. He gave an additional importance to the knights, who constituted the civil service: it was a knight who held the only considerable command which he gave to a subject: the knights were admitted to his concilium along with senators.” The Legacy of Rome, The Conception of Empire, Oxford, Ernest Barker, p.71.
* Although it is conventional to speak of the Eastern and Western Empires, constitutionally the Empire remained one.
* The Institutes of Justinian, translated by J.B. Moyle, Oxford, (1889) p.1.
* Tribonian who presided over the entire exercise was Minister of Law and Justice, to Justinian. Born in Pamphilia in the latter part of the 5th century he had practiced as an advocate in the prefectural courts in Constantinople. He attracted the attention of Justinian. In 532, during work on the Digest, the Nika insurrection took place and because of his alleged corruption Tribonian received such hostility from the people that Justinian discharged him from office. After the insurrection was over Tribonian continued his work on the Digest and remained Justinian’s chief legal adviser until his death in 545. Gibbon has compared Tribonian to Bacon, both in learning and venality.
* Kolbert, Justinian, the Digest of Roman Law, Penguin Classics, p.41.
* Kolbert, op. cit., p.41.
* Hunter, Introduction to Roman Law, Sweet & Maxwell, p.79.
* Compare English law, Lord Cranworth’s Act (1860) (23 and 25 Vic. c 45) and the Conveyancing Act 1881.
* Hunter, op. cit., p.101.
* Hunter, op. cit., p.104.
* Hunter, op. cit., p.135.
* See Year Book 3 Edward II 59.
* See generally Schulz, History of Roman Legal Science, pp.53-56.
* Jolowicz, op. cit. p.409, see infra. For similar reasons legalism never arose in Ancient Greece. This may seem surprising as Greece had all the intellectual apparatus for legal science. But it had no legal professionals or jurists. Tribunals, known as the Heliasts, giant juries of 201 or even 1,001 jurors, decided court cases. They would not only decide facts but also the law. This opened the way to tribunals being swayed by rhetoric. At all events, such lay tribunals were incompatible with the development of legal science and therefore of legalism. Compare in this regard the relationship of the English judge to the jury. The latter determine facts conclusively, but the judge decides all questions of law, see infra.
* George W Keeton, English Law, The Judicial Contribution, David and Charles, p.90.
* English History, Encyclopaedia Britannica, 1958 edit.
* Schulz, History of Roman Legal Science, Oxford, p.57.
* And from clerical control. Most of the medieval universities - Bologna, Paris, Salamanca, Perugia, had become autonomous communities.
* London Street Tramways v London County Council (1898 A.C. 375).
* Parker v The Queen 1963 111 C.L.R. 610 when it refused to follow Director of Public Prosecutions v Smith 1961 A.C. 209.
* David and Brierley, Major Legal Systems in the World Today, Stevens, p.45.
* Jolowicz, op. cit., p.326.
* Article 39 of Magna Carta provided, “no freeman shall be captured or imprisoned or disseised or outlawed or exiled or in any way destroyed, nor will be go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”
* The Lex Hortensia (287 B.C.) by which the resolutions of the Concilium Plebis were given the force of law. After the Lex Hortensia plebiscita were equivalent in law to Leges; the Licinian laws (367 B.C.) which allowed the plebeians to become consuls; the lex Papiria (131 B.C.) which required the secret ballot in Assembly voting; the lex Caecilia Dedidia (98 B.C.) which stipulated the interval between promulgation of a law and voting on it as 24 days and the prohibition on proposals dealing with unrelated subjects being included in the same bill and the lex Cornelia (67 B.C.) which prohibited laws being applied to and being restricted to particular individuals.
* Compare in respect of statutes the Bill of Rights 1689, the Act of Settlement 1701, the Act of Union with Scotland 1707, the Parliament Acts 1911 and 1949 (which established the primacy of the House of Commons) and various Acts relating to electoral distribution.
* Sulla did introduce the requirement of Senate approval. It was one of his reforms introduced in 82 B.C. primarily to bolster the powers of the Senate but the requirement was removed by Pompey and Crassus in 70 B.C.
* Thus in 91 B.C. Livius Drusus introduced a bill into the Assembly in which he sought to ‘tack’ on to popular provisions concerning the supply of corn an unrelated subject - deprivation of the equites right to sit on criminal juries. In the intense political atmosphere around this measure, the Senate advised that the Bill was illegal, as being contrary to the lex Caecilia Dedidia, Jolowicz, op. cit., p.27.
* 450 B.C.
* Jolowicz, op.cit., p.44.
* Jolowicz, op.cit., p.95.
* In England it was by no means an immediate or easy process. The Judges were first the King’s servants and dismissible at his pleasure. Gradually the Bench changed in composition. Clerics ceased to be appointed. There was a tremendous struggle in the 17th century when James I insisted that the Judges remain his servants and further when James II sought to remove them at will. But the courts continued to assert their independence and this ultimately became embodied in the Act of Settlement 1701.
* Jolowicz, op.cit., p.71.
* They were not rightless in private law. They had rights under the ius gentium, Jolowicz, op.cit., p.64.
* “But the most conspicuous and numerous instances and demonstrations of his criminality come from his Governorship in Sicily. For three long years he so thoroughly despoiled and pillaged the province that its restoration to its previous state is out of the question. A succession of honest generations over a period of many years, could scarcely have achieved even a partial rehabilitation.”, Cicero Against Verres, Penguin, Cicero - Selected Works, Grant, p.41. In a similar situation 1,800 years later, following the impeachment of Warren Hastings, England set about introducing all the protections of English law and British justice into India.
* op. cit., p.70. The arbitrariness of Roman government was to some extent relieved by the extension of citizenship. The claim by the Italians to citizenship and the opposition to it by the Senate and the Roman mob was one of the main issues in the Social War (97-88 B.C.). This resulted in the acquisition of Roman citizenship by the Italians which brought with it the application of Roman law. We are concerned here only with the period of the Republic. But with the Principate citizenship began gradually to be extended to the Provinces. At all events some provincials acquired citizenship, the most celebrated being the apostle Paul. Presumably his father or grandfather had acquired citizenship.
* As in the case of the slave Somersett kept in a hulk on the Thames, 20 St.Tr. 1.
* “And with respect to the argument from state necessity, on a distinction being made aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books understand that distinction”, Lord Camden in Erskine v Carrington 19 St.Tr. 1073; Wilkes v Wood (1763) 19 St. Tr. 1153; Leach v Money, Watson and Blackmore (1765) 19 St. Tr. 1001; Entick v Carrington (1765) 19 St. Tr. 1029; and Wilkes v Lord Halifax (1769) 19 St. Tr. 1001 and, more recently Christie v Leachinsky (1947) A.C. 596-597.
* Felton 3 St. Tr. 371, Ibrahim v R (1914) A.C. 599 and The Judges Rules 1912.
* Case of Proclamations (1610) 12 Coke Reports 74.
* Musgrave v Chung Tee Ong Toy (1891) A.C. 270; Stockdale v Hansard (1839) 9 Ad. E. 1.
* (1700) 1 Ld. Raym. 455.
* The prerogative writs were certiorari for excess of jurisdiction; prohibition to prevent excess of jurisdiction and mandamus to compel performance of a public duty.
* Although control over Sewer Commissions by the writs should not be overlooked in their historical development, see Judicial Review and the Rule of Law: Historical Origins, Jaffe, 72 L.Q.R. 345. It is important to recognise that the jurisdiction exercised by the courts under the prerogative writs was entirely supervisory. Legalism does not compel the substitution of judicial decision for executive action.
The essence of legalism is that the issue to which it applies should be justiciable. That is, it should be capable of being resolved by the application of pre-existing standards. Questions of policy are outside its boundaries. The courts are only concerned with whether the executive is operating within the powers conferred upon it and, in the case of executive discretion, that the administration has taken account only of relevant considerations but all relevant considerations. The Courts will ensure that where private rights and obligations will be affected by an executive decision, due process has been accorded.
* Rome, M. Rostovtzeff, Oxford University Press, Ch XII, p.133
* Cicero and the Roman Republic, F.R. Cowell, Penguin, p.138.
* 3 Charles II Ch. 6.
* S.A. de Smith, Constitutional and Administrative Law, Penguin, p.501; Hasbury 3rd edit, p.260, para 563.
* Clifford & O’Sullivan (1921) 2 A.C. 570. (At least by the remedy of prohibition).
* Wolfe Tone’s Case (1798) 27 S.T. TR. 613.
* Law of the Constitution, Macmillan & Co Ltd, (1982), p.293.
* Elias, Roman Law in a Nutshell, Sweet and Maxwell, 1945.
* 2nd edit, pp.11-13.
* Jolowicz, Historical Introduction to Roman Law, Oxford, p.496. “In the East, where the Empire still existed, Justinian’s compilations were neglected in favour of simpler and more accessible memorials of Roman law: the Eclogia of Leo the Isaurian (740) and the Procheiron of Basil the Macedonian (870), the efforts of Leo VI (the Wise, 866-912) to revive the law of Justinian in 900 by compiling the Basilica led only to a temporary renaissance, and as a matter of practice earlier or later works were employed.”, David and Brierley, Major Legal Systems in the World Today, Stevens, 2nd edit, p.35.
* One may thus smile at the irony of the Digest, intended by its author to be the definitive foundation of a regulatory legal order in the Empire should, after half a millennium, have become the catalyst for 800 years of legalism in Europe.
* Meynial, Legacy of the Middle Ages, Roman Law, Oxford, p.367.
* Ryan, An Introduction to the Civil Law, Law Book Company, p.11.
* In 1075 Pope Gregory had declared the supremacy of the church and its freedom from secular control. In that situation it was imperative for the church to have ‘her own jurisprudence’, E.F. Jacob, A Legacy of the Middle Ages, Political Thought, p.514. Gratian provided the Papacy with the centralised legal system it needed.
* Gabriel le Bras, Legacy of the Middle Ages, Canon Law, p.326.
* M. Bloch, Feudal Society, Routledge and Keegan Paul, p.111.
* At least not without formalisation or codification. In the 11th century local mercantile custom centred around the Italian cities, of which Pisa was the most prominent. Attempts were made to bring about uniformity among these differing Mediterranean usages. The Consulato del Mare (1340) was one example and was adopted by the English courts at Bristol, Southampton and London. In England a mercantile custom could be proved before a jury of merchants. It thus became law through this continuing process of formalisation extending from the 16th to the 19th centuries as described in Goodwin v Robarts, 1875 L.R. 10 Ex. 76, 337 affirmed H.L. 1 A.C. 476.
* Van Kleffens, Hispanic Law, Edinburgh, p.173.
* As Gibbon, writing in the 18th century, said, “the vain titles of the victories of Justinian are crumbled into dust, but the name of the legislator is inscribed on a fair and ever lasting monument. Under his reign and by his care, the civil jurisprudence was digested in the immortal works of the code, the Pandects, and the Institutes: the public reason of the Romans has been silently transfused into the domestic institutions of Europe, and the laws of Justinian still command the respect or obedience of independent nations.” Gibbon, Decline and Fall of the Roman Empire, ch.23.
* “In continental countries the doctrine of the jurists played a correspondingly important role to that of the courts in common law countries. Consequently, the work of the glossators, commentators and pandectists must also be viewed in relation to the contemporary adaptation of the Roman Law to modern European conditions…”, Stone, Legal Systems and Lawyers Reasonings, Maitland, p.224.
* Judske lolv of Valdemar seir (1251), Denmark; the General Code of Magnus Lagaböte (1274), Norway and Iceland; The General Laws for Town and the General Law for the Country, Magnus Eriksson (1350), Sweden and Finland. Early codifications of the laws took place in Norway (1683), Denmark (1687), and in Sweden and Finland (1734).
* David and Brierley, Major Legal Systems in the World Today, Stevens, pp.40, 48.
* This is not to say that throughout this period Roman law was without its critics. In France, a body of jurists, known as the Humanists criticised the Roman law as commented upon by Bartolus. Hotman (1567) wrote a work AntiTribionianus, criticising the Corpus Iuris Civilis as decadent and lacking in principles.
* On the Vocation of our Age for Legislation and Legal Science.
* The original codifications were largely based on this naïve idea that a code could be formulated which would require almost no judicial interpretation. The Prussian code, which contained 16,000 clauses was based on this assumption. Napoleon, who was very active in the preparation of the French Code (presiding over more than half the 102 sessions of preparation) exclaimed, “Mon code est perdu” when told that the first commentary upon it had been published. Portalis, the leading member of the committee which prepared the code was wiser when he laid down that a code should be confined to a statement of general principles and not attempt to cover the entire field of the code’s application.
* David and Brierley, Major legal systems in the World Today, 2nd edit, Stevens, p.44.
* Ryan, An Introduction to the Civil Law, Law Book Company, p.31.
* David and Brierly, op.cit., p.42. Speaking of the Pendectists “it is said that they set themselves the task of tracing the original meaning in Roman times of the legal propositions of Justinian’s Corpus Iuris. But the further they went back behind the adaptation of Roman law to post-medieval European conditions, the greater became the gap between their work and the urgent tasks of adapting Roman law to the needs of countries which had received it… It was only because they were not as logical as they thought they were that the pandectists achieved so much and destroyed so little. Whatever their design, because they were men of 19th century society, seeing through its eyes and using words with its meanings, they were in fact adapting the Roman law to the conditions of their contemporary society.” Stone, op. cit. p.226.
* Ryan, op.cit., p.23.
* T.F. Plucknett, The Relations between Roman Law and English Common Law down to the 16th Century: A General Survey, Toronto Law Journal, pp.47-48.
* Not to be confused with the Court of Chancery.
* Windeyer, Legal History, 2nd edit, Law Book Company, p.48.
* Maitland, The Forms of Action of Common Law, Cambridge, p.5.
* Bracton, De Legibus quoted by Allen, Law in the Making, Oxford, p.167.
* History of English Law, Methuen, Vol IV p.293.
* Thus, Book II of the Institutes refers to the following Titles (i) “Of the different kinds of things” (ii) ”Of incorporeal things” (iii) “Of servitudes” and (iv) “Of usufructs”.
* Legal Systems and Lawyers Reasonings, Maitland,pp.212-213.
* European codification was “an attempt at a massive ‘once and for all’ authentic exposition of the law”. The Italian Legal System, Cappaletti, Merryman, Perillo, Stanford, 1967,p.243.
* Julius Stone, Legal Systems and Lawyers Reasonings, Maitland, p.214. Thus Stone instances Article 1384 of the French Code providing for liability for parents in the case of damage caused by their children and of masters for the damage caused by servants and apprentices. This Article was used to develop “one single principle to cover these and analogous liabilities created by the courts in special situations to meet modern industrial conditions.”
* Art. 1135; c/f with the common law, Public Service Board of New South Wales v Osmond (1986) 60 A.L.J.R. 209.
* The Italian Legal System, Capaletti, Merryman and Perillo, Stanford, p.254. This is forbidden by the common law in the interpretation of statutes. The courts may not fill a casus omissus.
* It derives from the Austrian Civil Code of 1811 (although the reference there is to the principles of natural law). It appears as Article 3 of the Preliminary Provisions of the 1865 Italian Civil Code. Article 6 of the Spanish Code refers to the general principles to be deduced from the code.
* R. Pound, Jurisprudence, Yale, 1959, Ch.19. p.725.
* Thus, for example, the spelling out of an entire body of law as to the transfer of chattels by traditio from Articles1141,2279-80, 2102 and 2119 taken together; Stone, op.cit., p.217, note 32.
* Science of Legal Method, Modern Legal Philosophy, p.35. Quoted in Friedmann, Legal Theory, p.221.
* Although for the position in medieval England, see Allen, Law in the Making,Oxford,4th edit. p.366.
* Maine, Ancient Law, Everyman Edition, pp17-18.
* Maine, Ancient Law, Everyman, pp. 17-18.
* Eyston v Studd (1954) Plow. 459.
* It is to be noted that the Courts in Australia have refused to allow the use of analogies derived from statute to form principles, Public Service Board of NSW v Osmonde (1986) 60 ALJR 209.
* Schulz, History of Roman Legal Science, op. cit., p.286.
* ‘rumpere’, ‘to break’, began to be interpreted as ‘corrumpere’ ‘to spoil’.
* See Jolowicz, op. cit., p.286; Hunter, op. cit., p.146; see, however, the comments of Schulz, op. cit., p.130.
* Harding, Social History of English Law, Pelican, p.226.
* (1808) 1 Camp. 493.
* Koop v Bebb (1951) 81 CLR 629.
* Employer’s Liability Act 1880.
* Priestley v Fowler (1837) 3 M. & W. 1.
* Butterfield v Forrester (1809) 11 East 60.
* Chandler v Webb (1904) 1 KB 493.
* Here we have an ambiguity in language. The ‘common law’ mostly refers to the entire system of judge made law in England and in countries which have acquired English law. But the common law may be intended to refer only to that part of judge made law formulated in the courts of common law as distinct from judge made law formulated in the courts of equity. Both common law and equity courts were amalgamated by statue in 1875.
* 27 Henry VIII c 10.
* Holsworth, H.E.L., Methuen, Vol IV, pp.450-461.
* Maitland, Lectures on Equity, Cambridge, p.34.
* 3 Tothill 188.
* The rule in Tyrell’s case (1557) preventing the legal interest passing.
* “For when an Act of Parliament is against common rights and reason… the common law will control it and adjudge such Act to be void”, Bonham’s Case (1610) 8 R.E.P. 114, 118.
* (1889) 23 Q.B.D. 168.
* (1941) 67 C.L.R. 536 at 540/541.
* For the ‘common law’ in this context, see in Re Wait (1927) Ch. 606, 635-636; King v Greig (1931) V.L.R. 413 and Watt v Westhoven (1933) V.L.R. 458.
* It is true that Lord Herschell when speaking of the Bills of Exchange Act in Bank of England v Vagliano (1891) A.C. 107 at 144 said that ‘the proper course is to ask what is the natural meaning of the words uninfluenced by any considerations derived from the previous state of the law’. But as Halsbury correctly said, subsequent decisions ‘may well be to extend as well as to explain the terms of the statute, whereas the use of the earlier cases is mostly to explain or illustrate those terms’, 3rd Edit, Vol 3, p.142. All that Vagliano means is that there is no ‘presumption that the previous law remains the same unless the provisions of the code are clearly inconsistent with it’, (1945-46) 19 A.L.J. 192.
* 3rd Edit Vol 22, p.7, para 1.
* See the discussions in Re Wait, Watt v Westhoven, King v Greig, supra, as to whether the common law system in relation to the sale of goods is confined to the ‘common law’ as strictly defined or extends to the rules of equity.
* Registration was necessary to confer interests in land. Unregistered instruments could create equitable interests and priorities were determined by equitable principles resulting from the lodgement of caveats and other procedures connected with the registration process: Butler v Fairclough (1917) 23 C.L.R. 78; Clements v Ellis (1934) 51 C.L.R. 217 at 237; Abigail v Lapin (1934) A.C. 491.
* Riche v Ashbury Railway Company (1875) L.R. 7 H.L. 653 but see Ashbury v Riche in the court below (1875) L.R. 9 Ex. 224 at 229 and Willes J’s judgment in Phosphate of Lime Company v Green (1871) L.R. 7 C.P. 43 and Saloman v Saloman (1897) A.C. 22.
* Thus the warranty provisions in Part V if the Trade Practices Act 1974 are converted into non-consensual statutory requirements whilst still bearing a contractual personal.
* Thus the concept of a lease was almost totally reconstructed by statutory impositions in the war-time and post war Landlord and Tenant legislation.
* The ‘defence power’ under the Australian Constitution (s.51 pl.6) was construed to be a purposive power and that therefore the power of the Commonwealth parliament to make laws for defence expanded or contracted with the needs of defence.
* “In the nineteenth century … law became a realisation of the idea of liberty and existed to bring about the widest possible individual liberty. Liberty was the free will in action. Hence it was the business of the legal order to give the widest effect to the declared will and to impose no duties except in order to effectuate the will or reconcile the will of one to the will of others.” R. Pound, An Introduction to the Philosophy of Law, Yale, p.79.
* (1939) KB 687
* Dixon, Jesting Pilate, Science and Judicial Proceedings, The Law Book Company, p.13. Set out in the Introduction.
* Otto v. Bolton, (1936) 2 KB 46 decided after Donohue, provides an example. Builders in a house were held not liable for injuries sustained by the purchaser’s mother as a result of a defective ceiling. On the face of it one would have thought that the circumstances were governed by the rule in Donohue as did the Court itself, but an earlier decision of the House of Lords in Cavalier v Pope (1906) had in effect excluded realty from the scope of the rule. Thus the Court was compelled to regard ‘realty’ as a relevant ground for distinction contrary to the conclusion it would have reached by the ordinary processes of analogical reasoning.
* The doctrine of precedent had also become less flexible. The locus classicus of the doctrine was stated by Parke, J in Mirehouse v Rennell in 1833. “Our common law system consists of the applying to new combination of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.”
* In this case a government inspector in a wartime munitions factory was injured by an explosion in the factory, the explosion resulting from highly explosive material. She claimed damages for the injuries without alleging negligence.
In making this claim she relied upon the rule of law established in Rylands v Fletcher (1868), which laid down if a person keeps on his land anything likely to do mischief if it escapes, he must keep it in his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. Rylands v Fletcher thus did not require proof of negligence by an injured plaintiff but the question raised in Read v Lyons was whether it was material to the rule that the escape of the dangerous user must cause injury outside the land where it was taking place.
The House of Lords held that it was. Rylands v Fletcher itself was an exception to the principle of fault liability. That exception arose from various lines of old authority imposing strict liability which were, in the words of Dean Wigmore, ‘wandering about’, ‘unshepherded and unhoused’ until they were rationalised by Mr Justice Blackburn. These old authorities related to cattle trespass and fire. Mr Justice Blackburn had generalised them into the rule set out above.
The House of Lords resolutely refused to extend Rylands v Fletcher any further. The outer perimeter of ‘fault liability’ had been reached. Lord Macmillan said, ‘the process of evolution has been from the principle that every man acts as his peril and is liable for all the consequences of his acts to the principle that a man’s freedom of action is subject only to the obligation not to infringe any duty of care which he owes to others …’. Lord Macmillan recognised that an exception existed in the harm done by dangerous animals in which strict liability would be imposed. He recognised the analogy of that exception. Of the exception itself he said ‘it is too well-established to be challenged’. But he added ‘such an exceptional case as this affords no justification for its extension by analogy’. Lord Porter conceded the apparent illogic of allowing strict liability for injury to the plaintiff if she had been just outside the munitions factory but not when she was within it. But he would not, on that account, extend Rylands v Fletcher further.
* (1947) A.C. 341.
* (1979) 53 A.L.J.R. 656.
* See the Animals Act 1977 (N.S.W.).
* Promissory estoppel as enunciated by Denning in Hightrees (1944) and as developed by the Court of Appeal in Combe v Combe (1951) was reconcileable with the principles of contract and the doctrine of consideration. It recognized that representations of future conduct could not be enforced. The need for consideration in such a case was never denied. Estoppel’s only function was as a defence justified by the ordinary principles of Equity. It was neither necessary nor just to confine estoppel to representations of fact where it was relied upon as a defence only. In this way the principles of contract and the principles of equity were reconciled.
The equitable interest of a deserted wife in the matrimonial home, as suggested by Denning, ran counter to authorities defining the wife’s right as a personal right or ‘equity’ terminable on commission of a matrimonial offence or divorce. Denning’s view on this confused an incident of the matrimonial relationship with interests governed by the principles of property and equity. The position of the wife in the matrimonial home was eventually and properly resolved by statute.
* Lee v Bude & c Railway Co, “It was once said if an Act of Parliament were to create a man judge in his own cause, the Court might disregard it… I deny that any such authority exists.”
* H.E.L. Vol. iv pp.187-189.
* The Australian Law Reform Commission was established in 1975 under an Act of 1973. This followed by a decade the United Kingdom Law Commission. Law reform bodies were established in all the Australian States and in most other common law countries during this period.