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