CLH Topic 1 cont.

Lecture 3
1. Roman roots cont.
Subsequent fate of the Corpus Iuris Civilis: very little
impact in the East. See instead popularity of Greeklanguage summaries of the CJC, e.g. the Paraphrasis
(summary of the Institutes in particular) and later the
Basilica and Hexabiblos.
Cf the rise of the so-called barbarian codes in the West:
e.g. the Lex Romana Visigothorum (Alarics Breviary)
2. Medieval reception
Glossators flourished at Pavia, Bologna etc from around
1100AD (the 12th century): Irnerius; the four doctors,
Martinus, Hugolinus, Jacobus and Bulgarus; Johannes
Bassianus; Azo. Finally, around the middle of the 13 th
century (i.e. twelve hundreds), Accursius.
Note complementary (and sometimes contradictory)
system of Canon Law: doctores utriusque iuris
3. The ius commune and Roman Dutch law
Commentators (N Italy,14th-15th century): Bartolus de
Sassoferrato; Baldus de Ubaldis. A more actively critical
1

approach to the CJC, but still essentially concerned with

commentary/exegesis on/of the Roman sources.
Cf French Humanists (France, 16th century): Donellus.
Awareness of the social/historical/political context of
Roman legal rules for the first time. Cf wider cultural
trends within Europe, i.e. the Renaissance and
Reformation.
Roman-Dutch legal scholarship (Holland/Netherlands,17th18th century): The Hooge Raad; Grotius Introduction to the
Roman Dutch Law and Law of War and Peace, Vinnius,
Van Leewen, Groenewegen, Huber, Voet Commentarius
Ad Pandectas.
4. The Pandectists and German Historical School
Thibault, Savigny, Jhering, Windscheid etc: an attempt to
produce a systematic statement of Roman legal rules, in a
sense continuing the work of Justinians Compilers.
These German 19th-century scholars hugely influential on
all Western legal systems.
5. The codification movement
French Code Civil: 1804 still largely casuistic,
intellectually unsophisticated.
German Civil Code (BGB): 1900 highly comprehensive
and systematic
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Both codes exported around the world, the first due to

Napoleons military successes, the second due to its innate
intellectual value.
The older civil codes such as the French, Egyptian, and
Austrian ones are structured according to the institutional
system of the Gaius and generally have three large parts:
Law of Persons (personae)
Law of Things (res)
Issues common to both parts (actiones).
The newer codes such as the codes of Germany,
Switzerland and Portugal are structured according to the
Pandectist System:

General part
Law of Obligations
Law of Real Rights
Family Law
Law of Inheritance

Only the UK and the Scandinavian countries in Europe

remain untouched by the codification movement.
6. The common-law tradition
An entirely different legal system, with its roots in Medieval
writs (cf the formulae of ancient Roman law)
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Law studied in the Inns of Court, not in universities

(indeed, English law not studied at any English university
before Blackstone began lecturing at Oxford in the late 18 th
century)
The common law, administered by the Kings Courts, vs
Equity and the Courts of Chancery
The Judicature Acts of the 1870s brought an end to the
formal Law/Equity split, but this division in the substantive
law continues even today.
Another hallmark of the common law: law expounded by
judges through the cases, rather than by law-makers
through statute. Analogical reasoning vs deductive
reasoning. Benthams attempts to introduce codification to
England during the early 19th century unsuccessful. The
rise of the doctrine of precedent during the second half of
the 19th century.
English law exported to SA by English-trained judges
during the 19th century it was grafted on to / combined
with the Roman-Dutch legal rules to create what is now
referred to as a mixed legal system cf Scotland.
7. Conclusion