Ph Civil law-> Law of Spain -> Roman Law -> Greek stoic attention to importance of transaction, impress on the
n, impress on the memory of
Philosophy witnesses, just like modern day marriage contract (witness + rituals) Early Roman Law Intertwined with Religion Symbols for criminal/civil action: linen towel, mask, plaintiff touches ears and neck, command to produce stolen objects etc. hardy peasants fashioned law to their simple lifestyle. Primitive “occult science” soon gone bec of treachery of plebians. Govt: Elective King, Council of Nobles, General Assembly of People The Family As a Basic Unit King administered was and religion, proposed laws. Marriage laws ascribed to Romulus, Civil law rights, contracts, punishments. Rights attainable only with respect to fam, not indivs. Fam was ruled by the highest living ascendant As royal power decays, it gives way to dominion of aristocracies= judicial privileges that preserved customs accurately before writing patria postestas= natural for sons to obey father, natural to look to was invented. Law was Lex and Jus= command and justice, a him for strength and wisdom (maine’s idea). Strangest problems in relationship between man and man and man and god. Crime legal history: father (only citizens) has control over life and death of disturbed this relation, law and punishment restored peace. his kids, kids and wife can be given away like cattle. It is hard on Roman women, always subject to male authority even when married. Theory of Injury and Liability: do not injure others or else gods will “Perpetual tutelage & Perpetual Guardianship” get angry and lightning will hit guilty and innocent Roman juriconsults attribute this to mental inferiority of the female Theory of Contracts: when making a promise and society no legal sex. remedy, one can invoke the gods to jeopardize the community *priests shaped the law to suit their religious ends, they declared Marriage and Divorce what was right and wrong, sometimes suspected of “altering texts” Religious marriage “conferreation”: full of symbols, husband buys Ancient Roman law intertwined with Religion=stagnates, fear of wife as early as 12 yrs old from parents; sacrifice of fruits w/ 10 eternal damnation freezes process of thinking; Substance of law witness, taste salt cake of rice administered by with doctors masquerading as priests. civil marriage “coempion : wife fulfills by buying w/ 2 pcs copper an Early religion of Romans=not relationship with all-knowing god, but intro to his house and household dieties. “public observance for social cohesion, Gods associated with public weal” made it easier to extricate from religion. Disputes no longer woman passed in law as daughter of husband “usus” explained by extra-human interposition *woman is like chattel, may be subjugated, sold, returned if Law and Symbols deficient. She can be divorced on flimsy reasons, simple message or letter would suffice as declaration of separation. Roman Law began with signs and gestures to symbolize transactions. Contracts needed performance of gestures for its validity call Incest was condemned; concubine (above prosti, below wife) Verbal: when pact is effected, there is question and answer before allowed. If man was celibate and had child with concubine, he is “vinculum juris” is attached legitimate bec of their marriage and can have inheritance. Literal: entry in a ledger, gives obligation Illegitimate, only name and status of mother. Real: delivery of thing Consensual: Agency, partnership, sale, letting, hiring In patria potestas, male orphan or minors must be in custody of family friend or guardian until age of puberty at 14. Females were Landmarks of Jurisprudence accdg. To Maine: under tutelage forever-never attains age of reason and experience. 1 Nexum: contract and conveyance are blended, formalities more Upon death of father, son becomes patria potestas. important than agreement itself Testate and Intestate Succession 2 Stipulation: simplified the old ceremonial 3 Literal: formalities waived if proven from observance of Roman Fixation with family unit=invention of will. Will came from household “mancipium” primitive form of conveyance and gave rise to 4 Real: moral duty is reconized contract. 5 Consensual: mental attitude of parties are solely regarded Will: transfer household to new head all possessions, slaves, rights and obligations. Family will not die. The Concept of Obligation Roman law of obligation and contract and delict had the most Edictal Law: order of intestate succession. Descendants nearest influence in foreign law. agnate those relatives same name. *no women. Maine says in primitive society, property was nothing, obligation Twelve Tables: Testator in front of 7 witnesses. Later on, only seals was everything. and signatures of 7 witnesses. Obligation: bond w/ which the law joins people in consequence of Martial nature of Roman nation gave rise to the codicil (supplement certain voluntary acts to will) and fidei-commissa (trust, for roman soldiers who die in Contracts/Delicts: acts which give rise to obligation remote colony) Pact + Obligation = Contract Obligations: natural and civil. Natural is when person of maturity Property divided into res mancipi (moveables, high value like land, binds himself to an engagement without formality, law would not slaves, animals transferred thru ceremony of “mancipium”) and res enforce but will not refuse to recognize. nec mancipi (immoveables, conquest and discovery of material nature, no need for ceremony). Later on 2nd absorbed mancipi. Edict was passed that equitable actions upon mere pacts provided that they are founded on consideration (causa) Other sources of obligation: quasi-contracts (agreement is missing, Evolution of Contract not contracts e.g. payment by mistake, must refund) & quasi delicts Mancipi= property is transferred, severed contracts from conveyances. Classification of contracts: Acquisition of Property Philosophy of Early Roman Law Original right to property were through discovery, capture, prior Roman Law polished by Grecian philosophy, such as theory of occupancy/possession natural law. Law was conceived as principles which express nature of things to w/c man must conform his conduct e.g. Procreation, Modes of acquiring: 1 mancipium (delivery of thing w/ witness and parental power, doing what one pleases, common ownership of air, public official) 2 in jure cessio (solemn delivery before a praetor) 3 water, modes of acquiring property such as capture of animals, adjudicatio (partition made by judge) 4 lex (determined by Twelve discovery of gems, creation of new objects. It is not like man-made Tables) 5 usucapio (by prescription) law. Hoebel’s essential aspects of property: 1) object 2) web of social Greek stoics: ethico-legal, rules of conduct on humanity superior to relations (limiting and definition of relations: Roman law genius, any local law. Charity rather than doing immoral things. person’s control over property is relative and can be limited by society) Before, Roman law did not have ethical element. It was simple like the Stoic philosophy from Greeks, only 1 form of property, 1 form *no one should make evil use of his own property “even though contract, in family law only two: wife had no property and separation indiv acquires property, it is society which creates the circumstances of property. 2 forms of human assoc: societas and communio that make property out of it” = Roman limitation on land holding Law of Contracts and Bailments: from displeasing gods, he is not Crime and Punishment recognized as a social danger. Legal symbols replaced symbols of In Ancient communities, not law of crimes, but law of wrongs (torts). magic, contract became source of obligation. Person injured get compensation. In Twelve Tables, theft (furtum) is Commonthread of Roman Private Law: individualism, freedom from at the top of civil wrongs= obligation to give money state interference. No gov’t interference on divorce and marriage. Early Religious Code defined crimes, violations of divine command. Ownership was individualistic. Laws punishing against sins, and laws punishing torts against To moderate individualism, principles of aequitas (practical neighbors. Ex post facto: law making body for sins against the state. concession, not rigid, there is equity and discretion) and humanitas Bill of pains and penalties, trial not under rules and procedures. (kindness, sympathy, goodness, consideration for others) Crime: unlike sin and tort, is injury to the whole community then Free marriage developed from Humanitas, wife is not subjugated. state that 1 must be avenged 2 legis will delegate trial 3 legis Husband’s usucapio was abolished, as this was for chattel not appoints regular commissioners to try crimes 4 commissioners into humans. It also softened parent and child, cannot kill child anymore; permanent chambers to try crimes. *impulses of victim is proper sell, only when poor. measure of vengeance. 2nd and 3rd Century: peak of Roman Juristic science, justice separated Quaestro Perpetua: In Ph, anti-graft court for recovering money from from politics. However, after 300 AD, religion gripped it again. gov-gen. *All these theories ascribe to the “individual”, BUT ancient law knew nothing of individuals, but families, existence of forefathers Maine Chapt 8: The early history of property and descendants. There is no distinction on the Law on Persons and Ordinances of Nature: we acquire naturally the animals, the soil, the on Things in the beginnings of law, and the jurists’ interpretations trees; Natural modes of acquisition (Jus Gentium) e.g. Occupancy only applied to their time. What will be instructive is joint-ownership by families and kindred, NOT roman jurisprudence w/c ascribed to Roman Principle Occupancy: taking possession what is not property indiv property as the general rule. of anyone. These are wild animals, abandoned lands, property of an enemy. There has to be intent of keeping them manifested by specific India is a better study since it rarely deviates from the original. The acts. Later on this became the basis of modern Int’l Law on Capture Village Community of India is at once an organized patriarchal in War and sovereign rights in newly discovered countries. society and an assemblage of co-proprietors. The personal relations and propriety rights are inseparable. India never surrenders to Int’l Law derives from an assumption that in hostilities, communities innovation, conquests do not disturb it. are remitted to a state of nature and there is no owner as far as the fighters are concerned (res nullius). This thought came from the Roman: personal to common; Indian: common to personal dogmas of Juriconsults. To survive, primitive institutions need to be elastic. The Village Occupancy furnished explanation on origin of private property? Community then is not necessarily an assemblage of blood-relations, Proceedings are identical, common at first, then private. but it is either such an assemblage or a body of co-proprietors formed on the model of an association of kinsmen One of the Jurists, Blackstone, wrote that in law of nature, your possession only lasts while you have actual possession of the land But the pressure of this superior ownership has never crushed the etc. after that, another may seize it. When mankind increased in ancient organization of the village, and it is probable that the number, more permanent dominion became necessary. enactment of the Czar of Russia, who is supposed to have introduced serfdom, was really intended to prevent the peasants from Another jurist, Savigny, conception of ownership involving the three abandoning that co-operation without which the old social order elements in the canon—Possession, Adverseness of Possession, that could not long be maintained. Russian Village appears to be a nearly is a holding not permissive or subordinate, but exclusive against the exact repetition of the Indian Community; BUT in India separation world, and Prescription, or a period of time during which the of rights is distinct and continuous, in Russia, there is an expiration Adverse Possession has uninterruptedly continued. the land is redistributed again accdg to the number of the community. True basis of property seems to be, not an instinctive bias towards Internal Arrangements w/in Patriarchal Groups the institution of Property, but a presumption arising out of the long continuance of that institution, that everything ought to have an In Europe, they would share produce and food to the villagers. In owner. Russia, property can be divided and persons can have separate claims. In India, separate proprietorship can be indefinite. The Roman and English contrivances have very much in common and illustrate each other most instructively, but there is this difference between them, that the object of the English lawyers was Classification of Moveables and Immoveables to remove complications already introduced into the title, while the Roman jurisconsults sought to prevent them by substituting a mode Divide property into categories, sometimes no relation. Res Mancipi of transfer necessarily unimpeachable for one which too often of Roman Law included not only land, but slaves, horses, and oxen. miscarried. No difference in dignity of moveables and immoveables (no inferior) Courts of Law for property: made distinction b/n Property and Initially Res Mancipi is favored over Res Nec Mancipi. Objects of Possession. (Physical detention w/ intent to hold as own; tenants enjoyment (property) > others (unknown, rare, limited use e.g. counterclaims w/ ownders) ; Proprietary right by means of Law and jewels) stubborn Ancient Law did not let it go up in value, Equity uneducated mind Roman Jurisprudence and Barbarians From many rituals for transfer of property, it became simplistic when society constantly transferred commodities to avoid inconvenience, Roman affected barbarians even before Justinian’s rule; debased esp. Slaves. Roman Law existed in barbarian systems, enabled it to coalesce w/ Roman Jurisprudence. Res Nec Mancipi: no need for rituals; nature very quickly acquired. Soon it became same value as Res Mancipi. less ritual more Legal and equitable property less likely to be appreciated by Tradition/Delivery =advantageous. Juriconsults say Tradition is more barbarians & Roman Law in Property ancient than Mancipation (not true). Feudalism Leasing land to free tenants tenant acquires Parental Powers: what son gets from war he may keep. German proprietorship 2 branches of tenure: slaves turned into “coloni” & classifications have been influenced by Roman. Emphyteusis (true proprietor, can be reinstated after ejected thru Real Action, protected as long as he paid rent) Law of moveables > Feudal law of land (Europe, except England). We have, therefore, in the Emphyteusis a striking example of the Delay in Legslation: Canon Law, did not like prescriptions (no loss double ownership which characterised feudal property, and one, in disuse, right is still a right) moreover, which is much simpler and much more easily imitated Usucapion: long period of time, it becomes your property. Must be than the juxtaposition of legal and equitable rights. taken in good faith, mode of transfer. Taken away after 1 to 2 years Soldiers of the Roman Army also had emphyteusis: State was of disuse; Security against mischief. Difficult, sometimes landlord, soldiers cultivated. counterproductive. When law and equity fused, no more need for contrivance, usucapion became prescription in modern law. Barbarian feudalism: Frankish and Lombard Sovereigns give away public domain for military service, fiefs give service to their lords (Duty of respect, guardianship of sons and daughters= borrowed Patron and Freedman under Roman law) normally those given lands are personal companions of the sovereign who first had to serve and give up freedom to the Sovereign.