Roman Law Procedure and Current Oriental Canon Law Procedure: a Brief Survey about the libellum litis introductorium (original) (raw)
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More than thirty years ago, Robert Somerville wrote an essay that dealt with one of the many puzzles facing scholars when they confront Gratian's Decretum.1 He pointed out that although Gratian included many canons from the Second Lateran Council in the last version of his Decretum, he did not include canon nine, Prava autem consuetudo. He wondered why. The canon's content was strange. Pope Innocent II had promulgated a prohibition forbidding monks and canons regular to study Roman law. The canon also barred them from representing litigants in lawsuits as patroni.2 It declared that those monks who used their glorious voices to participate in the clamor of the courtroom neglected their liturgical songs and prayer because of greed. Instead, they argued cases using a thicket of legal citations that resulted in confusing the just with the unjust and divine law with impiety. This conciliar admonishment was hardly a positive view of an advocate's job, whether a monk, canon regular, or neither.3
The chapter offers an historical overview of Roman law as an object of legal historical research. The forms of contemporary research on Roman law are more diverse than they have ever been. This is true regarding its varied national traditions, in each of which distinct historical and linguistic conditions have obtained. It is likewise true regarding the disciplinary location of research, and also at the level of method. In long historical perspective, this situation could not easily have been foreseen. From late medieval to early modern Europe, the prestige of Roman law had allowed it to serve as an important source of doctrine in analogical argument. Although much anachronism followed in consequence, this also meant that readers of Roman law brought a remarkable range of concerns to their practice. By the late 19th century, however, the historical study of Roman law had been reduced nearly everywhere to the narrowest form of doctrinal study. In many places, this resulted from foundations laid for the study of Roman legal science in Germany, a development whose politics resemble those obtaining elsewhere when positive law is advanced as the truest form of law. In the Anglophone world, significant pressure in this direction arose from a tradition of comparative study between the common law and civil law, which often demanded that the civil law be understood ex negativo in light of the common law's peculiar self-regard. And everywhere there was the fateful decision to locate the academic study of Roman law in law schools. Law school is where Roman law went to die. The recent efflorescence of Roman law owes its origins to a number of related factors. Many of these are shared with legal history writ large: the remarkable influence of feminism in one generation, or new institutional economics, have impelled research in Roman law, too. Some developments were accidental: the interest of historical sociologists like Fustel de Coulanges and Henry Sumner Maine generated conversations with visible echoes today. Similarly, the fact that Roman legal texts are among our oldest evidences of Latin made legal language a special focus of historical linguistics, and this in turn produced a school of legal scholarship that has employed linguistic tools to seek the ur-forms of Roman legal concepts. Some developments were endogenous to the study of antiquity: the on-going discovery of documentary texts from the ancient world yields every year new legal texts, with the result that varied evidence for law in action—including, significantly, law in action in colonial contexts—exists at the forefront of historical research. Finally, unsurprisingly, the major development has been a surge of interest in law among scholars located in Classics and History departments, participating in the currents in law & society and law & literature scholarship that have swept the academy over the last two generations. History is not destiny, of course. Significant areas of research are only now opening to view (or becoming active once again, with new and interesting tools). Because the remains of Roman law transmitted by textual traditions were overwhelmingly concerned with private law, public law has rarely received sophisticated attention. The publication of new evidence over the last century should make public law an area of vital growth in the future. The comparative study of Roman law, not least with rabbinic law, has long had a few sophisticated practitioners. The potential of the field is enormous, and hopefully the rise of interdisciplinary degree programs will foster growth in this area. Finally, Roman legal scholarship from antiquity to the twentieth century should itself be subjected to critical analysis, a process that has begun and will hopefully accelerate.
The Varieties of Ancient Legal History Today
The article surveys, contextualizes and explicates the arguments of the eight papers featured in the forum on " The New Ancient Legal History " in 3:1 Critical Analysis of Law (2016) (http://cal.library.utoronto.ca/index.php/cal/issue/view/1743). Please do seek out the journal and the wonderful papers described in this piece.
Reflections on the Roman legal culture
Rome, just like other states of the ancient world, has stated its supremacy by warlike conquests, but also by perfecting its institutions and even by the use of diplomacy. Of all legal systems of the ancient worlds, that of Rome seems by far the most interesting and influential for the latter development of law. This character is due, primarily, to the practical spirit of the Romans and their tremendous capacity to assimilate and adapt cultural elements and institutions from other legal systems. We should also consider the giant leap that the Roman civilization has made, from the farthest antiquity, to the creation of institutions and concepts, principles that would survive the Roman Empire and decisively contribute to the construction of modern law. There are two characteristics that can best describe the specificity of the legal Roman culture: constructivism and conservatism. Keywords: legal history, Roman legal culture, characteristics
Emory Law School, 2018
Course description: In the thousand years between the Law of the Twelve Tables (451 BCE) and Justinian's massive Corpus Iuris Civilis (530 CE), the Romans developed the most sophisticated and comprehensive secular legal system of antiquity. Roman law is still at the heart of the civil law tradition of the European Continent and some of its former colonies in the Americas, Asia, and Africa, and it was instrumental in the development of international law, the church's canon law, and the common law tradition. The Roman lawyers created new legal concepts, ideas, rules and mechanisms that are still applied in the most Western legal systems. Specifically designed for American law students without a civil law or canon law background, this course introduces the Roman legal system in its social, political, and economic context. The course will cover the fundamental topics of private law (persons, property and inheritance, and obligations); the revival of Roman law in the Middle Ages; and the current impact of Roman law in the era of globalization. No knowledge of Roman history or of Latin is required, and all materials will be in English translation. Learning Outcomes: On successful completion of the course on Roman law students will be able to: (i) demonstrate basic understanding of the foundations of Roman law from a comparative perspective; (ii) analyze and critically evaluate Roman legal concepts and rules covered in the course; (iii) present arguments based on Roman law sources in a well-structured manner (iv) exhibit a working knowledge of Property law, the law of succession, and the law of obligations (contracts and delicts); and (v) analyze the techniques of the Roman law of litigation. Final Examination: 1. The final examination for the course on Roman law will consist of an original research papers (i.e. expanded essay) or a written answer to any of the hypos we will discuss during the course. The title of the paper or the selection of the hypo must be approved by the instructor in advance. 2. The paper requires the writer to analyze a perspective or to argue a point. The paper should be about 4,000 words long. It should contain: an abstract, a main text, and some concluding reflections. The style should be similar to that of an op-ed for the New York Times. The answer to one of the hypos should be about 2,000 words long and should contain quotations related to the Corpus iuris or Roman legal sources.
Roman Jurists and the Empire: History and Interpretation
Jurists and Legal Science in the History of Roman Law, 2021
page 4. (III): reaching the textual layer of classical jurists 5. The edition of Ulpian's De officio proconsulis: purpose and method 6. D. 48.18.1.23: mechanical errors and glosses 7. D. 48.18.1 pr.-4: error by haplography 8. D. 1.16.6pr.-2: mechanical errors and intentional alterations 9. Coll. 3.3.1 and D. 1.6.2: dual tradition and emendation 10. Paratext 11. Juristic books as 'Literature' 11. The Code System. Reorganizing Roman Law and Legal Literature in the Late Antique Period (translated by Carole Gustely Cürten) Detlef Liebs 1. The digest system 2. Pseudo-Paul's Sententiae 3. Codex Gregorianus 4. Codex Hermogenianus 5. Hermogenian's Iuris epitomae 6. Pseudo-Ulpian's Opiniones 7. Codex Theodosianus 8. Codex Iustinianus 9. Justinian's Digesta 10.