TOPIC 1

Old Order and legal pluralism:

the culture of european
Common Law
THE FOURTEENTH CENTURY
A changing world
The Middle Age was a period of paralysis of
knowledge, arts, sciences and law.
The great influence of religion, the successive
wars and rigid feudal society preclude the social
progress and produce delay in many areas.
The medieval man forgot the classical tradition.
The change will occur in the fourteenth century.
A series of events beginning of a great
transformation in almost all areas of society.

THE FOURTEENTH CENTURY
A changing world
The fourteenth century was a period of transition
between the Middle Age and the Renaissance.
It is the end of a long period of cultural, social
and scientific darkness.
Events happen in this century that will transform
the world.
Both in the way of understanding and the
conception of the individual.
These changes will affect decisively the law and
its configuration within the emerging modern
state.

THE FOURTEENTH CENTURY
A changing world
Theocentrism is progressively replaced by a
new anthropocentrism that pervades all
societies and the law.
The society dominated by a religious conception
is gradually replaced by an human conception.
It is the prelude to modern legal settings in which
the outlines of a future construction, can be
perceived.
It is the rupture between of Papal power and the
Human power.


THE FOURTEENTH CENTURY
The big changes
There were four important events which caused
fundamental changes in society.
The demographic, the socio-economic changes,
the explosion of plastic arts and literature also
the crisis of values
It is not a sudden change but it is obvious that
the collective consciousness began to doubt
about the pillars of the old order.
The new order will be accompanied by new
structures: political, legal, economic and social.
THE FOURTEENTH CENTURY
The big changes
It is a great transformation that will lead to a
profound change in collective behavior and
social organization.
The first are the demographic changes with
drastic reduction of the population.
The population declined dramatically. The Black
Death reduced the population by 33%.
After the hunger and plague people begin to
question the established order and the need for
change to ensure survival.

THE FOURTEENTH CENTURY
The big changes
The population also decreased by the ruinous
and continous wars.
The second is the abandonment of the
countryside.
The increase of population in the urban areas
helped the resurgence in trade among cities.
The trade also led to the interchange of
knowledge and new ideas of worldview.
The third change: during this century there was
a real explosion of art and literature.


THE FOURTEENTH CENTURY
New anthropology
This new cultural creativity brings a new world
view.
Boccaccio, Giotto, Petrach and Dante are the
best examples.
Finally it is a singular point in time characterized
by the search for a renewed anthropology.
The individual becomes the centre of the world.
It will create a new political and social
conception based on his new thought.


THE FOURTEENTH CENTURY
Crisis of values
This anthropology is based on a new worldview
in which God is not the center of the universe.
The center of the world is human behavior.
The individual feels part of the world but with the
determination of his will.
This was manifested in the domain of property
and the demands of their own freedom.
Is the concept of Dominium: the individual
freedom and the guarantee of freedom.

THE FOURTEENTH CENTURY
Crisis of values
It is a circular concept: The property is the
expression of freedom and the freedom is the
guarantee of property.
The property is inherent in human beings. It is a
part of their original essence.
It was a renewal of the collective consciousness,
a new vision of men in society.
The legal renewal will be a reflection of this new
vision.
God ceases to be the primary social reference
and start being the man

THE RISE OF THE NATION-STATE
The defining characteristic of modernity is a
vision of society as a collective of human
individuals.
The freedom is recognized and respected.
The individual dimension affects politics,
economics and culture throughout Europe
The new political structure will want to break the
union with the Church of Rome.
This is the embryos of the modern western
state.
THE RISE OF THE NATION-STATE
The state as the new organization of individuals,
released from divine influences.
We are at the beginning of the modern state
configuration.
The law arises from the power of man and not of
divine power.
This is a confrontation that still endures today.
The Church has consistently resisted losing their
influence and power.

THE RISE OF THE NATION-STATE
The material demonstration of the increase of the
power of the monarchs was the growth of their
dominions and the concentration of territories.
The recently acquired territories were usually
governed in accordance with their originating norms
and instruments.
This solution that preserved the differences between
the territories was established within the context of a
legal-political culture that was common to Western
Europe.
Territorial growth constituted, in part, the basis of the
wealth that monarchs required to sustain their
growing power.

THE RISE OF THE NATION-STATE
Medieval scholarship was elaborated for the
most part by theologians and jurists both civil
law specialists and canonists. It was mainly
concerned with the origin of power and its limits.
Medieval theoretical constructions of power
remained highly present in the Modern Age.
However, they were subject to evolution and
came to coexist with other theories pertaining to
new schools of thought (humanism and
rationalism).
THE RISE OF THE NATION-STATE
Through those constructions of medieval origin,
the power of the prince (iurisdictio) followed a
path that had been initiated in the Late Middle
Ages.
Gradually, a greater and more active power
would be sought in relation to other institutions
that also held power.
As for the origin of the princes power, it was
considered to be the result of Gods will, as was
the origin of the political community over which it
was exercised.

THE RISE OF THE NATION-STATE
Regarding the exercise of power, the theoretical
discourse that was enclosed within the medieval
jurisdictional model continued to serve to explain
what was occurring in practice, until the end of
the Old Order.
The prince began to exercise his power to make
laws (sovereign power) more and more actively,
while submitting himself to less and less
restrictions and increasingly seeking legitimacy
in his will (absolute sovereignty) a will that
tended to the general good.

THE KINGDOM OF FRANCE
Legal and political laboratory of modernity
One of the best exponents of the modern state is
the kingdom of France.
The pioneer experiences, manufactured in
France, will be extended throughout continental
Europe.
The political experiences started opposing the
Papal power
The sovereign power appears as maximum
exponent of individualism which begins to
prevail.
THE KINGDOM OF FRANCE
Legal and political laboratory of modernity
This power begins to worry about placing social
areas of law among its priorities.
The monarch was awarded with the same
prerogatives as the Roman emperors.
A distrust of the common law is produced and he
is reconsidered the Corpus Iuris.
Customs are collected and grouped in writings
by Charles VII in so-called Ordinances Montils-
les-Tours writing in 1454.

THE KINGDOM OF FRANCE
Roman Legal Tradition
Formally the constitutional basis of the
customs remained untouched.
It is the consolidation of customary law and
Roman legal tradition.
It is a break with the theocratic power and the
assertion of individuality as a centre for legal
action.
This French conception of royal power, law and
the separation of the Church will spread mainly
through continental Europe.

THE KINGDOM OF ENGLAND
The origin of the Common Law
The Norman conquest is an event which is
traditionally identified as the moment which
transformed the political and legal landscape of
english society.
The insularity of the english historical context,
regard to the continental Europe, is notable.
The common law includes the common rights to
all free men of the country
The most important field is the procedural.

THE KINGDOM OF ENGLAND
The origin of the Common Law
The existence of an effective procedural
guarantees the facts of a case that will be their
force in law.
There were necessary legal experts with the
tecnical expertise to craft the writs themselves.
Along with a strong power of the king appears
the defense of customary law.
It is a legal system based rigorously on
precedent and legal case.


THE KINGDOM OF ENGLAND
The origin of the Common Law
A new class of lawyers, with sufficient technical
expertise, began to form.
They were not students of the prestigious
universities. They are exclusively professional in
nature.(practice exclusively).
The legal class was increasingly able to remove
the more unpleasantly authoritarianism.
The implementation of the new law will take
shape to the predominance of the common law
and the progressive loss of royal power.


THE COMMON LAW
Autonomy of law
The power of the judiciary becomes separated
from the person of the king
Three courts of the common law became
separate from the kings government.
It begins the so-called rule of law which means
autonomy of law and the primacy of politics,
subordination of the state to the law.
Common law means law produced largely by
jurists, men trained in the school of their own
profession.


THE COMMON LAW
Precedent and case
The normative acts will be marginal until the
nineteenth century
The history of the common law runs from the
Norman Conquest to the present day.
It is a practical law made by practitioners and
estranged from the great cultural continental
movements
It is the root of the English nations identity and
is often inseparable from that identity. It is the
most characteristic symbol of England.


AN IDEOLOGICAL BREAK WITH THE PAST
The Humanism

In the fifteenth and sixteenth centuries, new
theories are developed.
Great developments of thoughts that influence a
decisive way in the legal field, are produced.
The first was the dominant humanism in the
man-society-nature relationship.
The defining characteristic of humanism is an
optimistic evaluation of the capacities of the
subject.
AN IDEOLOGICAL BREAK WITH THE PAST
The Humanism
Humanism is a clear self-sufficiency of the
human beings.
There was a confidence in the liberation from
the constraints of medieval submission.
The Classical civilization was rediscovered.
The readings of Greek and Roman tradition are
recovered.
The Roman law is the base used for the new
legal setting and as security for the new social
conception.


AN IDEOLOGICAL BREAK WITH THE PAST
The Reformation
Humanism is the base of religious protest the
sixteenth century: the Reformation.
Their main objectives of this movement are:
- To liberate the faithful to live prisoner of
sacred structures.
- To give an individual interpretation of religion.
- To eliminate the influences of Church of
Rome.
A total transformation of community about
religious beliefs of the Middle Age is produced.

AN IDEOLOGICAL BREAK WITH THE PAST
The Reformation
The Corpus Iuris Canonici was rejected as an
example of the power of the Church.
It is the best legal instrument for the
perpetuation of their juridical structures.
The rejection of papal power increased the
power of governments that controlled even the
churches in their countries.
A large number of european monarchs support
this new ideas to limit the Papal power in their
countries.


AN IDEOLOGICAL BREAK WITH THE PAST
Proto-capitalism
Three principal events are the prelude of
capitalism:
-The increase of wealth from trade with America
-The opening of new land trade routes.
-The new conception of property and the
guarantee of individual freedom.
The individual wont consider the trade as sin
(this is the medieval conception).
They will contemplate the trade as a part of their
personal development.
AN IDEOLOGICAL BREAK WITH THE PAST
Scientific revolution
The last consideration is the great development
of the natural sciences.
The most notable examples being the new
cosmology of Galileo and studies in
mathematics and physics of Descartes and
Pascal.
It is de confirmation of the rupture with de
religious vision of the world.
They break the moral and religious ties to the
Middle Ages.

LEGAL HUMANISM
Primary move the study of law
The legal humanism was the primary move in
the study of law across all of Europe during the
fifteenth and sixteenth centuries.
The humanism represents a new way of looking
at the relationship between the subject and the
world.
It is a revolution in anthropology. The law
should serve to regulate human relationships.
The law is no longer the expression of God on
earth.


LEGAL HUMANISM
Primary move the study of law
The Church should not be the one who
determines the rules
The message of legal humanism can be
reduced to a polemical attack on the perceived
methodological deficiencies of medieval
glossators and commentators.
Roman law must be returned in its historical
dimension, ensure its historicization, their
adaptation to new cultural realities.
It is the recovery of the Roman legal tradition

LEGAL HUMANISM
Ambitious project
The emblem of the legal humanism is novi
homines.
For a new man is necessary a new law. The new
law was found in the roman past.
It is the recuperation of the history of Roman
law. It is the current of historicization of law.
Historicization meant seeing Roman law as an
expression of an era.
It is a legal concept that wants to have a global
view of the world around the law.
LEGAL HUMANISM
Ambitious project
It was an ambitious project that demanded the
incorporation of the study of law in other fields of
knowledge: religion, philosophy, linguistics,
literature, archeology, politics.
They want to build a law as a Total knowledge.
This new methodology was a radical change of
the glossators and commentators.
They performed all aspects of legal study in the
Modern Age.



LEGAL HUMANISM
Historicist Rationalism
This contribution was fundamental for the
structural reform of the Roman law.
Humanists wished to establish the authentic
historical features of Roman law experience.
The first might be called the second rationalist
and historicist.
Roman law was seen by these scholars as ratio
scripta, they wrote manifestations of pure
rationality.
The Roman Law is the rediscovery of the new
rationality, the re-establishment of logic theories.
LEGAL HUMANISM
Historicist Rationalism
The perception of Roman law as a historically
generated phenomenon demanded that scholars
contextualized Roman Jurist`s texts.
Their techniques are within a global historical
vision of Roman civilization and the Roman law.
The method used is:
- They use the structures of Roman law but they
had the differentiation of past and present.
- And the identification of the present as a
specific epoch.
NATURAL LAW
Superior and universal reality
In the seventeenth and eighteenth centuries
arises at the European Continent a new
movement: The doctrine of natural law.
It is an internal dialectic between positive
historical forms of law and the highest forms of
law, inherents of human beings.
These structures of law is not produce by the
political organs.
These forms exist in a superior and universal
reality: the nature.
NATURAL LAW
Superior and universal reality
The recourse of natural law is not exclusive of
this modern period.
Greco-Roman culture, medieval culture and our
contemporary culture have participed in a similar
dialectic.
We can, in fact, we identify a common and
unifying all the qualities of this law in the natural
law.
Natural law tends to be liberating and
emancipating humanity.


NATURAL LAW
The natural reason
Principles and rules as opposed to contingent
and arbitrary decisions made by those in power.
Natural reason is a divine gift God has inscribed
in indelible characters in the things of creation.
Free from artificial historicism try to get the
original natural state of human beings.
The humanist anthropocentrism becomes
individualism.
There have been several precedents in history.

NATURAL LAW
Precedents
Tomas Aquinas:The universe is seen as
ordered for mankind and their by of divine rules
and principles.
Renaissance: A primal state in which each
individual subject was absolutely free to govern
his own actions.
The humanisms anthropocentrism. The most
basic natural law is the instinct to safeguard the
invividual self: the self preservation.
Senventeenth century: The individual is not
bound by an social or collectives ties.

NATURAL LAW
New sphere
Their emphasis on the pure state of mankind
serves to distihguish a new sphere of the law.
The liberties of the human subject cannot be
constrained by the arbitrary interventions of
power.
Power must be limited by respect for the rights
innate to human nature.
The monarchs can not legislate against these
natural rights.
They reinforce the idea that private property is a
natural right that rests on the human essence.

NATURAL LAW
Private Property
There are two important jurists:
-Van Groot (1583-1645).The natural state has a
fundamental rule: the respect of every persons
proprium (property).
-J ohn Locke (1632-1704) describe the state of
nature as one perfect freedom. The garantor of
individual liberty is attributed to property.
The private property is the heart of the new
order.
It is the maximum expression of individualism.