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136-451: In Roman law , the offences originally falling under the head of treason were almost exclusively those committed in military service. The very name perduellio , the name of the crime in the older Roman law, is evidence of this. Perduelles were, strictly, public enemies who bore arms against the state; and traitors were regarded as having no more rights than public enemies. The Twelve Tables made it punishable with death to communicate with

272-401: A constitution , written or tacit, and the rights encoded therein. The law shapes politics , economics , history and society in various ways and also serves as a mediator of relations between people. Legal systems vary between jurisdictions , with their differences analysed in comparative law . In civil law jurisdictions, a legislature or other central body codifies and consolidates

408-644: A federal system (as in Australia, Germany or the United States) or different voting configuration in a unitary system (as in France). In the UK the upper house is appointed by the government as a house of review . One criticism of bicameral systems with two elected chambers is that the upper and lower houses may simply mirror one another. The traditional justification of bicameralism is that an upper chamber acts as

544-417: A parliamentary system , as with Britain, Italy, Germany, India, and Japan, the executive is known as the cabinet, and composed of members of the legislature. The executive is led by the head of government , whose office holds power under the confidence of the legislature. Because popular elections appoint political parties to govern, the leader of a party can change in between elections. The head of state

680-688: A ruler ') is a set of ordinances and regulations made by ecclesiastical authority , for the government of a Christian organisation or church and its members. It is the internal ecclesiastical law governing the Catholic Church , the Eastern Orthodox Church , the Oriental Orthodox Churches , and the individual national churches within the Anglican Communion . The way that such church law

816-440: A "common law" developed during the reign of Henry II during the late 12th century, when Henry appointed judges who had the authority to create an institutionalised and unified system of law common to the country. The next major step in the evolution of the common law came when King John was forced by his barons to sign a document limiting his authority to pass laws. This "great charter" or Magna Carta of 1215 also required that

952-432: A Roman citizen ( status civitatis ) unlike foreigners, or he could have been free ( status libertatis ) unlike slaves, or he could have had a certain position in a Roman family ( status familiae ) either as the head of the family ( pater familias ), or some lower member alieni iuris (one who lives under someone else's law). The history of Roman Law can be divided into three systems of procedure: that of legis actiones ,

1088-401: A Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum . They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list. No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all

1224-529: A basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia. English and Anglo-American common law were influenced also by Roman law, notably in their Latinate legal glossary (for example, stare decisis , culpa in contrahendo , pacta sunt servanda ). Eastern Europe was also influenced by

1360-405: A complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law . Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure . Among the most consequential laws passed during the early Republic were

1496-442: A house of review. This can minimise arbitrariness and injustice in governmental action. To pass legislation, a majority of the members of a legislature must vote for a bill (proposed law) in each house. Normally there will be several readings and amendments proposed by the different political factions. If a country has an entrenched constitution, a special majority for changes to the constitution may be required, making changes to

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1632-601: A process of reform, at least in terms of economic, if not social and political, rights. A new contract code in 1999 represented a move away from administrative domination. Furthermore, after negotiations lasting fifteen years, in 2001 China joined the World Trade Organization . In general, legal systems can be split between civil law and common law systems. Modern scholars argue that the significance of this distinction has progressively declined. The numerous legal transplants , typical of modern law, result in

1768-552: A second decemvirate ever took place. The decemvirate of 451 BC is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome. Furthermore, questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Latin historians believed. Instead, those scholars suggest,

1904-468: A stone thrown by chance, to melt down such a statue if unconsecrated, to use mere verbal insults against the emperor, to fail in keeping an oath sworn by the emperor or to decide a case contrary to an imperial constitution. Treason was one of the publica judicia , i.e. one of those crimes in which any citizen was entitled to prosecute. The law deprived the accused in a charge of treason of his ordinary remedy for malicious prosecution, and also took from him

2040-411: A successor, the murder of (or conspiracy to murder) hostages or certain magistrates of high rank, the occupation of public places, the meeting within the city of persons hostile to the state with weapons or stones, incitement to sedition or administration of unlawful oaths, release of prisoners justly confined, falsification of public documents, and failure of a provincial governor to quit his province at

2176-623: A thousand years of jurisprudence , from the Twelve Tables ( c.  449 BC ), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman emperor Justinian I . Roman law forms the basic framework for civil law , the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law . After

2312-435: A will or a gift or emancipate a slave. Even the death of the accused, if guilty of treason of the gravest kind, such as levying war against the state, did not extinguish the charge, but the memory of the deceased became infamous, and his property was forfeited as though he had been convicted in his lifetime. Roman law Roman law is the legal system of ancient Rome , including the legal developments spanning over

2448-462: Is legislated , interpreted and at times adjudicated varies widely among these three bodies of churches. In all three traditions, a canon was originally a rule adopted by a church council ; these canons formed the foundation of canon law. The Catholic Church has the oldest continuously functioning legal system in the western world , predating the evolution of modern European civil law and common law systems. The 1983 Code of Canon Law governs

2584-499: Is a code of Jewish law that summarizes some of the Talmud's interpretations. A number of countries are sharia jurisdictions. Israeli law allows litigants to use religious laws only if they choose. Canon law is only in use by members of the Catholic Church , the Eastern Orthodox Church and the Anglican Communion . Canon law ( Ancient Greek : κανών , romanized :  kanon , lit.   'a straight measuring rod;

2720-420: Is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from

2856-587: Is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a science and as the art of justice. State-enforced laws can be made by a legislature , resulting in statutes ; by the executive through decrees and regulations ; or by judges' decisions, which form precedent in common law jurisdictions. An autocrat may exercise those functions within their realm. The creation of laws themselves may be influenced by

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2992-458: Is a system of rules, divided into primary (rules of conduct) and secondary ones (rules addressed to officials to administer primary rules). Secondary rules are further divided into rules of adjudication (to resolve legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws to be identified as valid). Two of Hart's students continued the debate: In his book Law's Empire , Ronald Dworkin attacked Hart and

3128-472: Is an "authority" to mediate people's interests. Oliver Wendell Holmes defined law as "the prophecies of what the courts will do in fact, and nothing more pretentious." In his Treatise on Law , Thomas Aquinas argues that law is a rational ordering of things, which concern the common good, that is promulgated by whoever is charged with the care of the community. This definition has both positivist and naturalist elements. Definitions of law often raise

3264-733: Is apart from the executive, and symbolically enacts laws and acts as representative of the nation. Examples include the President of Germany (appointed by members of federal and state legislatures ), the Queen of the United Kingdom (an hereditary office ), and the President of Austria (elected by popular vote). The other important model is the presidential system , found in the United States and in Brazil . In presidential systems,

3400-513: Is authority, identifiable purely through social sources and without reference to moral reasoning. In his view, any categorisation of rules beyond their role as authoritative instruments in mediation is best left to sociology , rather than jurisprudence. The history of law links closely to the development of civilization . Ancient Egyptian law, dating as far back as 3000 BC, was based on the concept of Ma'at and characterised by tradition, rhetorical speech, social equality and impartiality. By

3536-577: Is believed that Roman law is rooted in the Etruscan religion , emphasizing ritual. The first legal text is the Law of the Twelve Tables , dating from the mid-fifth century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written in order to prevent magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian social class convinced

3672-467: Is law?" There have been several attempts to produce "a universally acceptable definition of law". In 1972, Baron Hampstead suggested that no such definition could be produced. McCoubrey and White said that the question "what is law?" has no simple answer. Glanville Williams said that the meaning of the word "law" depends on the context in which that word is used. He said that, for example, " early customary law " and " municipal law " were contexts where

3808-461: Is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active and legal treatises were written in larger numbers before

3944-543: Is stronger in civil law countries, particularly those with a separate system of administrative courts ; by contrast, the public-private law divide is less pronounced in common law jurisdictions. Law provides a source of scholarly inquiry into legal history , philosophy , economic analysis and sociology . Law also raises important and complex issues concerning equality, fairness, and justice . The word law , attested in Old English as lagu , comes from

4080-441: Is that law is a system of rules and guidelines which are enforced through social institutions to govern behaviour. In The Concept of Law , H. L. A. Hart argued that law is a "system of rules"; John Austin said law was "the command of a sovereign, backed by the threat of a sanction"; Ronald Dworkin describes law as an "interpretive concept" to achieve justice in his text titled Law's Empire ; and Joseph Raz argues law

4216-1060: Is the Supreme Court ; in Australia, the High Court ; in India, the Supreme Court of India ; in the UK, the Supreme Court ; in Germany, the Bundesverfassungsgericht ; and in France, the Cour de Cassation . For most European countries the European Court of Justice in Luxembourg can overrule national law, when EU law is relevant. The European Court of Human Rights in Strasbourg allows citizens of

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4352-490: Is the legal systems in communist states such as the former Soviet Union and the People's Republic of China . Academic opinion is divided on whether it is a separate system from civil law, given major deviations based on Marxist–Leninist ideology, such as subordinating the judiciary to the executive ruling party. There are distinguished methods of legal reasoning (applying the law) and methods of interpreting (construing)

4488-461: Is this: '' maiestatis crimen illud est quod adversus populum Romanum vel adversus securitatem eius committitur." ("The crime of majestas is that which is committed against the Roman people or against their safety.") Of treasons other than military offences, some of the more noticeable were the raising of an army or levying war without the command of the emperor, the questioning of the emperor's choice of

4624-567: Is to make laws, since they are acts of the general will ; nor whether the prince is above the law, since he is a member of the State; nor whether the law can be unjust, since no one is unjust to himself; nor how we can be both free and subject to the laws, since they are but registers of our wills. Jean-Jacques Rousseau, The Social Contract , II, 6. The philosophy of law is commonly known as jurisprudence. Normative jurisprudence asks "what should law be?", while analytic jurisprudence asks "what

4760-477: Is traditionally the part of the law that changes least. For example, Constantine started putting restrictions on the ancient Roman concept of patria potestas , the power held by the male head of a family over his descendants, by acknowledging that persons in potestate , the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. The Codex Theodosianus (438 AD)

4896-594: The Lex Canuleia (445 BC), which allowed marriage ( conubium ) between patricians and plebeians ; the Leges Liciinae Sextiae (367 BC), which restricted the amount of public land ( ager publicus ) that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian; the Lex Ogulnia (300 BC), which permitted plebeians to hold certain priestly offices; and

5032-582: The Lex Hortensia (287 BC), which stated that the determinations of plebeian assemblies (plebiscita) would henceforth be binding on the entire populus Romanus , both patricians and plebeians. Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law . Rome's most important contribution to European legal culture

5168-701: The Manusmriti (c. 100–300 AD) were foundational treatises in India, and comprise texts considered authoritative legal guidance. Manu's central philosophy was tolerance and pluralism , and was cited across Southeast Asia. During the Muslim conquests in the Indian subcontinent , sharia was established by the Muslim sultanates and empires, most notably Mughal Empire 's Fatawa-e-Alamgiri , compiled by emperor Aurangzeb and various scholars of Islam. In India,

5304-459: The "is" and what "ought to be" problem. Bentham and Austin argued for law's positivism ; that real law is entirely separate from "morality". Kant was also criticised by Friedrich Nietzsche , who rejected the principle of equality, and believed that law emanates from the will to power , and cannot be labeled as "moral" or "immoral". In 1934, the Austrian philosopher Hans Kelsen continued

5440-656: The Battle of Actium and Mark Antony 's suicide, what was left of the Roman constitution died along with the Republic. The first Roman emperor , Augustus , attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to the Principate , e.g., reusing prior grants of greater imperium to substantiate Augustus' greater imperium over

5576-504: The Codex Hammurabi . The most intact copy of these stelae was discovered in the 19th century by British Assyriologists , and has since been fully transliterated and translated into various languages, including English, Italian, German, and French. The Old Testament dates back to 1280 BC and takes the form of moral imperatives as recommendations for a good society. The small Greek city-state, ancient Athens , from about

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5712-611: The Council of Europe member states to bring cases relating to human rights issues before it. Some countries allow their highest judicial authority to overrule legislation they determine to be unconstitutional . For example, in Brown v. Board of Education , the United States Supreme Court nullified many state statutes that had established racially segregated schools, finding such statutes to be incompatible with

5848-486: The Early Middle Ages , Roman law was rediscovered around the 11th century when medieval legal scholars began to research Roman codes and adapt their concepts to the canon law , giving birth to the jus commune . Latin legal maxims (called brocards ) were compiled for guidance. In medieval England, royal courts developed a body of precedent which later became the common law . A Europe-wide Law Merchant

5984-577: The English Court of Common Pleas had five. This powerful and tight-knit judiciary gave rise to a systematised process of developing common law. As time went on, many felt that the common law was overly systematised and inflexible, and increasing numbers of citizens petitioned the King to override the common law. On the King's behalf, the Lord Chancellor started giving judgments to do what

6120-1196: The Enlightenment . Then, in the 19th century, both France, with the Code Civil , and Germany, with the Bürgerliches Gesetzbuch , modernised their legal codes. Both these codes heavily influenced not only the law systems of the countries in continental Europe but also the Japanese and Korean legal traditions. Today, countries that have civil law systems range from Russia and Turkey to most of Central and Latin America . In common law legal systems, decisions by courts are explicitly acknowledged as "law" on equal footing with legislative statutes and executive regulations . The "doctrine of precedent", or stare decisis (Latin for "to stand by decisions") means that decisions by higher courts bind lower courts to assure that similar cases reach similar results. In contrast , in civil law systems, legislative statutes are typically more detailed, and judicial decisions are shorter and less detailed because

6256-571: The Fourteenth Amendment to the United States Constitution . A judiciary is theoretically bound by the constitution, just as all other government bodies are. In most countries judges may only interpret the constitution and all other laws. But in common law countries, where matters are not constitutional, the judiciary may also create law under the doctrine of precedent . The UK, Finland and New Zealand assert

6392-668: The French , but mostly the German Civil Code. This partly reflected Germany's status as a rising power in the late 19th century. Similarly, traditional Chinese law gave way to westernisation towards the final years of the Qing Dynasty in the form of six private law codes based mainly on the Japanese model of German law. Today Taiwanese law retains the closest affinity to the codifications from that period, because of

6528-516: The French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century, Roman law in Germany had been heavily influenced by domestic (customary) law, and it was called usus modernus Pandectarum . In some parts of Germany, Roman law continued to be applied until

6664-538: The Hindu legal tradition, along with Islamic law, were both supplanted by common law when India became part of the British Empire . Malaysia, Brunei, Singapore and Hong Kong also adopted the common law system. The Eastern Asia legal tradition reflects a unique blend of secular and religious influences. Japan was the first country to begin modernising its legal system along Western lines, by importing parts of

6800-679: The Latin Church sui juris . The Eastern Catholic Churches, which developed different disciplines and practices, are governed by the Code of Canons of the Eastern Churches . The canon law of the Catholic Church influenced the common law during the medieval period through its preservation of Roman law doctrine such as the presumption of innocence . Roman Catholic canon law is a fully developed legal system, with all

6936-479: The Old Norse word lǫg . The singular form lag meant ' something laid or fixed ' while its plural meant ' law ' . But what, after all, is a law? [...] When I say that the object of laws is always general, I mean that law considers subjects en masse and actions in the abstract, and never a particular person or action. [...] On this view, we at once see that it can no longer be asked whose business it

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7072-417: The Principate in 27 BC. In the period between about 201 to 27 BC, more flexible laws develop to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium , which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law

7208-622: The Quran has some law, and it acts as a source of further law through interpretation, Qiyas (reasoning by analogy), Ijma (consensus) and precedent . This is mainly contained in a body of law and jurisprudence known as Sharia and Fiqh respectively. Another example is the Torah or Old Testament , in the Pentateuch or Five Books of Moses. This contains the basic code of Jewish law, which some Israeli communities choose to use. The Halakha

7344-681: The absolutist theory of Thomas Hobbes ' Leviathan . Sun Yat-sen 's Five Power Constitution for the Republic of China took the separation of powers further by having two additional branches of government—a Control Yuan for auditing oversight and an Examination Yuan to manage the employment of public officials. Max Weber and others reshaped thinking on the extension of state. Modern military, policing and bureaucratic power over ordinary citizens' daily lives pose special problems for accountability that earlier writers such as Locke or Montesquieu could not have foreseen. The custom and practice of

7480-552: The ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law. The practical application of Roman law, and the era of the European Ius Commune , came to an end when national codifications were made. In 1804,

7616-467: The formulary system , and cognitio extra ordinem . The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of

7752-470: The imperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of the Roman Empire . Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below. Rei vindicatio

7888-471: The patricians to send a delegation to Athens to copy the Laws of Solon ; they also dispatched delegations to other Greek cities for a like reason. In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws, known as the decemviri legibus scribundis . While they were performing this task, they were given supreme political power ( imperium ), whereas

8024-597: The "basic pattern of legal reasoning is reasoning by example"—that is, reasoning by comparing outcomes in cases resolving similar legal questions. In a U.S. Supreme Court case regarding procedural efforts taken by a debt collection company to avoid errors, Justice Sotomayor cautioned that "legal reasoning is not a mechanical or strictly linear process". Jurimetrics is the formal application of quantitative methods, especially probability and statistics , to legal questions. The use of statistical methods in court cases and law review articles has grown massively in importance in

8160-424: The 22nd century BC, the ancient Sumerian ruler Ur-Nammu had formulated the first law code , which consisted of casuistic statements ("if … then ..."). Around 1760 BC, King Hammurabi further developed Babylonian law , by codifying and inscribing it in stone. Hammurabi placed several copies of his law code throughout the kingdom of Babylon as stelae , for the entire public to see; this became known as

8296-423: The 2nd century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola , who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus , a friend of Marcus Tullius Cicero . Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of

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8432-474: The 6th century, which were rediscovered by 11th century Italy. Roman law in the days of the Roman Republic and Empire was heavily procedural, and lacked a professional legal class. Instead a lay magistrate , iudex , was chosen to adjudicate. Decisions were not published in any systematic way, so any case law that developed was disguised and almost unrecognised. Each case was to be decided afresh from

8568-431: The 8th century BC was the first society to be based on broad inclusion of its citizenry, excluding women and enslaved people . However, Athens had no legal science or single word for "law", relying instead on the three-way distinction between divine law ( thémis ), human decree ( nomos ) and custom ( díkē ). Yet Ancient Greek law contained major constitutional innovations in the development of democracy . Roman law

8704-506: The German civil code ( Bürgerliches Gesetzbuch , BGB) went into effect in 1900. Colonial expansion spread the civil law system. Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old jus commune . However, even where the legal practice is based on a code, many rules deriving from Roman law apply: no code completely broke with

8840-596: The Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes. The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along with

8976-831: The Isaurian issued a new code, the Ecloga , in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica . Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in

9112-438: The King's entourage of judges hold their courts and judgments at "a certain place" rather than dispensing autocratic justice in unpredictable places about the country. A concentrated and elite group of judges acquired a dominant role in law-making under this system, and compared to its European counterparts the English judiciary became highly centralised. In 1297, for instance, while the highest court in France had fifty-one judges,

9248-509: The Middle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and it prescribed the possibility that the legal subjects could dispose their property through testament. By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law , had emerged. This legal system, which

9384-405: The Quran as its constitution , and is governed on the basis of Islamic law. Iran has also witnessed a reiteration of Islamic law into its legal system after 1979. During the last few decades, one of the fundamental features of the movement of Islamic resurgence has been the call to restore the Sharia, which has generated a vast amount of literature and affected world politics . Socialist law

9520-460: The Roman civil law ( ius civile Quiritium ) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings". It

9656-405: The Roman tradition. Rather, the provisions of the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions . In this context, the annual International Roman Law Moot Court

9792-556: The Romans acquired Greek legislations from the Greek cities of Magna Graecia , the main portal between the Roman and Greek worlds. The original text of the Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Gauls in 387 BC. The fragments which did survive show that it was not a law code in the modern sense. It did not provide

9928-478: The Senate controlled the treasury; and the consuls had the highest juridical power. By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the Principate , which had retained some features of

10064-1297: The Sharia: the Supreme Constitutional Court of Egypt may invalidate such laws, and in Iran the Guardian Council ensures the compatibility of the legislation with the "criteria of Islam". Prominent examples of legislatures are the Houses of Parliament in London, the Congress in Washington, D.C., the Bundestag in Berlin, the Duma in Moscow, the Parlamento Italiano in Rome and the Assemblée nationale in Paris. By

10200-430: The U.S. , the two systems were merged . In developing the common law, academic writings have always played an important part, both to collect overarching principles from dispersed case law and to argue for change. William Blackstone , from around 1760, was the first scholar to collect, describe, and teach the common law. But merely in describing, scholars who sought explanations and underlying structures slowly changed

10336-576: The adjudicator is only writing to decide the single case, rather than to set out reasoning that will guide future courts. Common law originated from England and has been inherited by almost every country once tied to the British Empire (except Malta, Scotland , the U.S. state of Louisiana , and the Canadian province of Quebec ). In medieval England during the Norman conquest , the law varied shire-to-shire based on disparate tribal customs. The concept of

10472-649: The ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna . The law school there gradually developed into Europe's first university. The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after

10608-427: The bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate. German legal theorist Rudolf von Jhering famously remarked that ancient Rome had conquered

10744-419: The classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began. During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person ( iudex privatus ). He had to be

10880-713: The courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with the Syro-Roman law book , also formed the basis for much of the Fetha Negest , which remained in force in Ethiopia until 1931. In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes issued by

11016-430: The current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication. The law of this period is often referred to as the "classical period of Roman law". The literary and practical achievements of the jurists of this period gave Roman law its unique shape. The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised

11152-476: The date of 48 B.C. has been conjecturally assigned, continued to be the basis of the Roman law of treason until the latest period of the empire. The original text of the law appears to have still dealt with what were chiefly military offences, such as sending letters or messages to the enemy, giving up a standard or fortress, and desertion. With the Empire , the law of treason was greatly expanded in scope, mainly in

11288-432: The defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile , therefore was only available to Roman citizens. A person's abilities and duties within the Roman legal system depended on their legal status ( status ). The individual could have been

11424-586: The defining features of any legal system. Civil law is the legal system used in most countries around the world today. In civil law the sources recognised as authoritative are, primarily, legislation —especially codifications in constitutions or statutes passed by government—and custom . Codifications date back millennia, with one early example being the Babylonian Codex Hammurabi . Modern civil law systems essentially derive from legal codes issued by Byzantine Emperor Justinian I in

11560-679: The dissolution of the Western Roman Empire , the Roman law remained in effect in the Eastern Roman Empire . From the 7th century onward, the legal language in the East was Greek. Roman law also denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany , Roman law practice remained in place longer under the Holy Roman Empire (963–1806). Roman law thus served as

11696-613: The earlier code of Theodosius II , served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines ( glossa interlinearis ), or in the form of marginal notes ( glossa marginalis ). From that time, scholars began to study

11832-485: The eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law . The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances ,

11968-401: The end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian , a Roman jurist). There are several reasons that Roman law was favored in

12104-540: The enemy or to betray a citizen to the enemy. Other kinds of perduellio were punished by "interdiction of fire and water" ( aquae et ignis interdictio ), in other words, banishment. The crime was tried before a special tribunal ( quaestio ) by two officials ( duumviri perduellionis ), which was perhaps the earliest permanent criminal court existing at Rome. At a later period, the name of perduellio gave place to that of laesa maiestas , deminuta or minuta maiestas , or simply maiestas . The lex Iulia maiestatis , to which

12240-488: The evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.). Later on, with

12376-406: The executive acts as both head of state and head of government, and has power to appoint an unelected cabinet. Under a presidential system, the executive branch is separate from the legislature to which it is not accountable. Although the role of the executive varies from country to country, usually it will propose the majority of legislation, and propose government agenda. In presidential systems,

12512-404: The expiration of his office or to deliver his army to his successor. The intention ( voluntas ) was punishable as much as an overt act ( effectus ). " Principes instar deorum esse " ("Emperors are as gods") are the words of Tacitus . This crime was called laesa maiestas divina in later law. It was not treason to repair a statue of the emperor which had decayed from age, to hit such a statue with

12648-851: The golden age of Roman law and aimed to restore it to the peak it had reached three centuries before." The Justinian Code remained in force in the East until the fall of the Byzantine Empire . Western Europe, meanwhile, relied on a mix of the Theodosian Code and Germanic customary law until the Justinian Code was rediscovered in the 11th century, which scholars at the University of Bologna used to interpret their own laws. Civil law codifications based closely on Roman law, alongside some influences from religious laws such as canon law , continued to spread throughout Europe until

12784-530: The idea of the rule of law because he did not accept the primacy of abstract normative principles over concrete political positions and decisions. Therefore, Schmitt advocated a jurisprudence of the exception ( state of emergency ), which denied that legal norms could encompass all of the political experience. Later in the 20th century, H. L. A. Hart attacked Austin for his simplifications and Kelsen for his fiction in The Concept of Law . Hart argued law

12920-428: The ideal of parliamentary sovereignty , whereby the unelected judiciary may not overturn law passed by a democratic legislature. In communist states , such as China, the courts are often regarded as parts of the executive, or subservient to the legislature; governmental institutions and actors exert thus various forms of influence on the judiciary. In Muslim countries, courts often examine whether state laws adhere to

13056-484: The jurisprudence of the Corpus Juris Civilis , especially in countries such as medieval Romania ( Wallachia , Moldavia , and some other medieval provinces/historical regions) which created a new system, a mixture of Roman and local law. Also, Eastern European law was influenced by the " Farmer's Law " of the medieval Byzantine legal system . Before the Twelve Tables (754–449 BC), private law comprised

13192-410: The jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated

13328-564: The last few decades. It is a real unity of them all in one and the same person, made by covenant of every man with every man, in such manner as if every man should say to every man: I authorise and give up my right of governing myself to this man, or to this assembly of men, on this condition; that thou givest up, thy right to him, and authorise all his actions in like manner. Thomas Hobbes, Leviathan , XVII The main institutions of law in industrialised countries are independent courts , representative parliaments, an accountable executive,

13464-513: The law more difficult. A government usually leads the process, which can be formed from Members of Parliament (e.g. the UK or Germany). However, in a presidential system, the government is usually formed by an executive and his or her appointed cabinet officials (e.g. the United States or Brazil). The executive in a legal system serves as the centre of political authority of the State . In

13600-622: The law. In common law systems, judges may make binding case law through precedent, although on occasion this may be overturned by a higher court or the legislature. Religious law is in use in some religious communities and states, and has historically influenced secular law. The scope of law can be divided into two domains: public law concerns government and society, including constitutional law , administrative law , and criminal law ; while private law deals with legal disputes between parties in areas such as contracts , property , torts , delicts and commercial law . This distinction

13736-734: The law. The former are legal syllogism , which holds sway in civil law legal systems, analogy , which is present in common law legal systems, especially in the US, and argumentative theories that occur in both systems. The latter are different rules (directives) of legal interpretation such as directives of linguistic interpretation, teleological interpretation or systemic interpretation as well as more specific rules, for instance, golden rule or mischief rule . There are also many other arguments and cannons of interpretation which altogether make statutory interpretation possible. Law professor and former United States Attorney General Edward H. Levi noted that

13872-597: The laws of the State, which mirrors the (theoretical) unimportance of judges' decisions for future cases in civil law systems today. From 529 to 534 AD the Byzantine Emperor Justinian I codified and consolidated Roman law up until that point, so that what remained was one-twentieth of the mass of legal texts from before. This became known as the Corpus Juris Civilis . As one legal historian wrote, "Justinian consciously looked back to

14008-426: The legal profession is an important part of people's access to justice , whilst civil society is a term used to refer to the social institutions, communities and partnerships that form law's political basis. A judiciary is a number of judges mediating disputes to determine outcome. Most countries have systems of appeal courts, with an apex court as the ultimate judicial authority. In the United States, this authority

14144-478: The magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts , in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves. The jurists also produced all kinds of legal punishments. Around AD 130

14280-472: The mid-1940s, efforts have been made, in country after country, to bring Sharia law more into line with modern conditions and conceptions. In modern times, the legal systems of many Muslim countries draw upon both civil and common law traditions as well as Islamic law and custom. The constitutions of certain Muslim states, such as Egypt and Afghanistan, recognise Islam as the religion of the state, obliging legislature to adhere to Sharia. Saudi Arabia recognises

14416-520: The military and police, bureaucratic organisation, the legal profession and civil society itself. John Locke, in his Two Treatises of Government , and Baron de Montesquieu in The Spirit of the Laws , advocated for a separation of powers between the political, legislature and executive bodies. Their principle was that no person should be able to usurp all powers of the state , in contrast to

14552-676: The most influential. In contrast to English common law, which consists of enormous tomes of case law, codes in small books are easy to export and easy for judges to apply. However, today there are signs that civil and common law are converging. EU law is codified in treaties, but develops through de facto precedent laid down by the European Court of Justice . Ancient India and China represent distinct traditions of law, and have historically had independent schools of legal theory and practice. The Arthashastra , probably compiled around 100 AD (although it contains older material), and

14688-512: The necessary elements: courts , lawyers , judges, a fully articulated legal code, principles of legal interpretation, and coercive penalties, though it lacks civilly-binding force in most secular jurisdictions. Until the 18th century, Sharia law was practiced throughout the Muslim world in a non-codified form, with the Ottoman Empire 's Mecelle code in the 19th century being a first attempt at codifying elements of Sharia law. Since

14824-538: The notion of justice, and re-entered the mainstream of Western culture through the writings of Thomas Aquinas , notably his Treatise on Law . Hugo Grotius , the founder of a purely rationalistic system of natural law, argued that law arises from both a social impulse—as Aristotle had indicated—and reason. Immanuel Kant believed a moral imperative requires laws "be chosen as though they should hold as universal laws of nature". Jeremy Bentham and his student Austin, following David Hume , believed that this conflated

14960-450: The old formalism is being abandoned and new more flexible principles of ius gentium are used. The adaptation of law to new needs was given over to juridical practice, to magistrates , and especially to the praetors . A praetor was not a legislator and did not technically create new law when he issued his edicts ( magistratuum edicta ). In fact, the results of his rulings enjoyed legal protection ( actionem dare ) and were in effect often

15096-570: The positivist tradition in his book the Pure Theory of Law . Kelsen believed that although law is separate from morality, it is endowed with "normativity", meaning we ought to obey it. While laws are positive "is" statements (e.g. the fine for reversing on a highway is €500); law tells us what we "should" do. Thus, each legal system can be hypothesised to have a ' basic norm ' ( German : Grundnorm ) instructing us to obey. Kelsen's major opponent, Carl Schmitt , rejected both positivism and

15232-490: The positivists for their refusal to treat law as a moral issue. Dworkin argues that law is an " interpretive concept" that requires judges to find the best fitting and most just solution to a legal dispute, given their Anglo-American constitutional traditions. Joseph Raz , on the other hand, defended the positivist outlook and criticised Hart's "soft social thesis" approach in The Authority of Law . Raz argues that law

15368-437: The power of the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets ( tabulae ), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly. Modern scholars tend to challenge the accuracy of Latin historians . They generally do not believe that

15504-416: The principle of representative government people vote for politicians to carry out their wishes. Although countries like Israel, Greece, Sweden and China are unicameral , most countries are bicameral , meaning they have two separately appointed legislative houses. In the 'lower house' politicians are elected to represent smaller constituencies . The 'upper house' is usually elected to represent states in

15640-417: The privilege (which those accused of other crimes generally possessed) of immunity from accusation by women or infamous persons, from liability to be put to the torture, and from having his slaves tortured to make them testify against him. The punishment from the time of Tiberius was death (usually by beheading) and confiscation of property, coupled with complete civil disability . A traitor could not make

15776-469: The question of the extent to which law incorporates morality. John Austin 's utilitarian answer was that law is "commands, backed by threat of sanctions, from a sovereign, to whom people have a habit of obedience". Natural lawyers , on the other hand, such as Jean-Jacques Rousseau , argue that law reflects essentially moral and unchangeable laws of nature. The concept of "natural law" emerged in ancient Greek philosophy concurrently and in connection with

15912-430: The reign of Tiberius , and led to the rise of a class of professional informers, called delatores . The concept of the emperor as divine had much to do with this. It became a maxim that treason was next to sacrilege in gravity. The law as it existed in the time of Justinian is contained chiefly in the titles of the Digest and Codex Ad legem Iuliam maiestatis . The definition given in the Digest (taken from Ulpian )

16048-524: The republican constitution, began to transform itself into the absolute monarchy of the Dominate . The existence of legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in

16184-440: The requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian . The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here: The Roman Republic had three different branches: The assemblies passed laws and made declarations of war;

16320-512: The separation of powers , vetoes , filibusters , quorum requirements, term limits , impeachments , the powers of the purse , and regularly scheduled elections . Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States , originate from ideas found in the Roman constitution. The constitution of the Roman Republic was not formal or even official. Its constitution

16456-402: The sharing of many features traditionally considered typical of either common law or civil law. The third type of legal system is religious law, based on scriptures . The specific system that a country is ruled by is often determined by its history, connections with other countries, or its adherence to international standards. The sources that jurisdictions adopt as authoritatively binding are

16592-448: The source of new legal rules. A praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict ( edictum traslatitium ). Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law

16728-458: The split between Chiang Kai-shek 's nationalists, who fled there, and Mao Zedong 's communists who won control of the mainland in 1949. The current legal infrastructure in the People's Republic of China was heavily influenced by Soviet Socialist law , which essentially prioritises administrative law at the expense of private law rights. Due to rapid industrialisation, today China is undergoing

16864-754: The time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge . Elements of Romano-canon law were present in England in

17000-621: The way the law actually worked. Religious law is explicitly based on religious precepts. Examples include the Jewish Halakha and Islamic Sharia —both of which translate as the "path to follow". Christian canon law also survives in some church communities. Often the implication of religion for law is unalterability because the word of God cannot be amended or legislated against by judges or governments. Nonetheless, most religious jurisdictions rely on further human elaboration to provide for thorough and detailed legal systems. For instance,

17136-418: The word "law" had two different and irreconcilable meanings. Thurman Arnold said that it is obvious that it is impossible to define the word "law" and that it is also equally obvious that the struggle to define that word should not ever be abandoned. It is possible to take the view that there is no need to define the word "law" (e.g. "let's forget about generalities and get down to cases "). One definition

17272-457: The world three times: the first through its armies, the second through its religion, the third through its laws. He might have added: each time more thoroughly. When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation. The influence is visible even in the law of persons or of the family, which

17408-423: Was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father. The codes of Justinian, particularly the Corpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III

17544-598: Was common to all of continental Europe (and Scotland ) was known as Ius Commune . This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries. Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by

17680-514: Was developed in order to better educate the students and to network with one another internationally. As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune , which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model. Law Law

17816-417: Was equitable in a case. From the time of Sir Thomas More , the first lawyer to be appointed as Lord Chancellor, a systematic body of equity grew up alongside the rigid common law, and developed its own Court of Chancery . At first, equity was often criticised as erratic. Over time, courts of equity developed solid principles , especially under Lord Eldon . In the 19th century in England, and in 1937 in

17952-496: Was formed so that merchants could trade with common standards of practice rather than with the many splintered facets of local laws. The Law Merchant, a precursor to modern commercial law, emphasised the freedom to contract and alienability of property. As nationalism grew in the 18th and 19th centuries, the Law Merchant was incorporated into countries' local law under new civil codes. The Napoleonic and German Codes became

18088-407: Was heavily influenced by Greek philosophy, but its detailed rules were developed by professional jurists and were highly sophisticated. Over the centuries between the rise and decline of the Roman Empire , law was adapted to cope with the changing social situations and underwent major codification under Theodosius II and Justinian I . Although codes were replaced by custom and case law during

18224-401: Was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero , lost a willingness to remain faithful to it towards the end of the Republic. When the Roman Republic ultimately fell in the years following

18360-510: Was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists ( prudentes or jurisprudentes , sing. prudens ) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science. Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius . Flavius

18496-426: Was so defined by the famous Roman jurist Papinian (142–212 AD): " Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam " ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit"). Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis . The first 250 years of

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