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The great formative traditions of law

From Baripedia


The creation of the modern state and by extension of public law dates back to about three centuries ago, while private law is more than 2000 years old. Public, private and international law is the result of a millenary evolution. When Swiss law had to be unified at the end of the 19th and beginning of the 20th centuries, Eugene Huber was inspired by Swiss codes resulting from a millenary evolution.

Most of its current legal principles and foundations date back 2000 years. The Civil Code and the Code of Obligations were drawn up in 1912. There are four main traditions that underpin Swiss private legislation:

  • Roman law;
  • German law;
  • canon law;
  • the school of modern law.

Roman law[edit | edit source]

Rome extends over a period of 1000 years from the 5th century BC to the 5th century AD. The Roman Empire has developed a coherent system that will apply to all Roman citizens and free men of the Empire.

Two characteristics form Roman law:

  • doctrine and customary law translated into writing (ius);
  • decisions of the Emperor and the organs of the Republic.

Roman law was to be shaped around the 5th century. In 438, Theodosius II officially codified the law.

In 476, the Western Roman Empire collapsed. In the Eastern Roman Empire the Justinian code was to be elaborated (Emperor Justinian was an oriental emperor living in the 6th century elaborated from 529 to 534.)

Corpus iuris Civilis - Justinian Code. Following the fall of the Western Roman Empire, Roman law was revised, it was formed in several parts to replace the Theodosian code:

  • code/codex : Imperial constitution, these are the Emperor's decisions;
  • digest/pandects: vast compilation of excerpts from more than 1500 books written by jurisconsults of the classical Roman period forming the doctrine;
  • institute: elementary manual for law school;
  • news: new laws promulgated by Justinian since the codex was written.

It was only at the beginning of the second millennium that Justinian's texts penetrated the western medieval universe.

Germanic law[edit | edit source]

The conquests of the Germanic tribes in the 5th century entered Roman territory. These peoples have their own rules like the law of the Franks or the Burgundians, when they settle they will keep their laws while the Roman populations keep theirs. From then on, a second legal tradition will emerge, which is the tradition of Germanic law. By interacting with Roman civilization, they will put their customs in writing by putting them in writing and in Latin.

Throughout the Mediterranean basin and applies throughout the Empire. On the contrary, tribes have personal laws (personal character).

Canon Law[edit | edit source]

Canon law, or canon law, is the set of norms that, in the Catholic Church, regulate the constitution, organization, functions of the Church, the status of its members and its property. It is a right derived from the ethical principles of Christianity and its vocation is to extend to all people.

First millennium[edit | edit source]

It was not until the beginning of the 4th century that the Edict of Milan tolerated the Christian religion in the Empire, putting an end to persecutions and obtaining freedom of worship. The Roman Empire passed from the pagan Empire to the Christian Empire in 380 BC through the Edict of Thessaloniki, which converted it to Christendom.

The conversation of the Roman Empire made the church part of the Roman Empire, which would also influence it by its law.

This influence was felt not only on the Roman Empire, but also on the Germanic peoples who converged towards the borders and within the Empire.

Several sources must be distinguished:

  • the Holy Scriptures: Old and New Testament;
  • decisions of the ecclesiastical authorities of the Church (councils: meetings of bishops/doctors of theology who elaborate doctrine and canons, i. e. decisions);
  • decree: these are the decisions of the popes;
  • customary law at the regional level;
  • Roman law: in particular the law of obligations.

Both Roman and canon law are written law.

End of the first millennium[edit | edit source]

We are witnessing an obsolescence of the old laws. In other words, we have lost the notion of written law. We no longer define ourselves as Roman, Burgundian, Visigoth or frank, but by the place where we have settled.

This rootedness can be explained as follows: since the great invasions, the Germanic and Roman peoples have been merging. It is a redefinition of identity.

On the other hand, having lost the notion of written law, we are in a wave of cultural loss. Moreover, the ignorance of judges no longer enables them to enter into a relationship with either Roman or German law. However, only canon law escapes this ignorance.

We are witnessing the emergence of local law, the application of majority law in the territories, this new law will combine loops of old legislation mixing Germanic and Roman law, then will be inserted into new solutions created on an ad hoc basis.

This new law is being developed at the local level and is no longer in written form, so it is a local customary law. Therefore, it is the only important system that exists.

Germanic and Roman rights exist, but in written form that has been relegated to libraries.

Beginning of the second millennium[edit | edit source]

  • Glossators: 12th century - 13th century

Justinian law was rediscovered in Bologna from the 12th century onwards. It is within universities that glossators will be the artisans of this rediscovery of the corpus iuris civilis developed in Constantinople. Then they will comment on these texts by teaching Europe the art of resolving conflicts no longer by using traditional customs contrary to reason, but rather by deciding cases by specific examination of the case in order to bring out a solution in accordance with reason.

They will be the fathers of European case law.

The glossators will attract students from all over Europe to Bologna to learn Roman law.

  • Conciliators[7]: 14th century - 15th century

It is professors who will bring Roman law into practice, because Germanic law does not have the depth and scope of Roman law. Thus, they will use Roman law to fill gaps in their local rights. With the reappearance of Roman law when they have a problem with local law they have used Roman law solutions. In Italy, we are witnessing a romanization of local rights.

  • Legal humanism: 16th century - 17th century

It is a return to the very roots of Roman law without the comments of conciliators and glossators. It goes back to the very meaning of Justinian law.

Thus, Roman law entered the West from the second millennium onwards through three stages:

  • Glossators - 12th century - 13th century: re-establishing the legal corpus (fathers of European case law);
  • Conciliators - 14th century - 15th century: use of Roman law to fill gaps in local law;
  • Legal Humanism - 16th century - 17th century: a return to the roots of Roman law without taking into account the annotations of glossators.

The Roman law that had disappeared is maintained through custom. As Roman law penetrated the countries of the south, the countries that were of Roman essence disappeared in favour of Roman law.

Until the promulgation of the Civil Code in 1804 in France, the latter was split in two:

  • SOUTH: the rebirth of Roman law makes Roman customs disappear, and it is also taught in universities;
  • NORTH: the arrival of Roman law and its development represent a threat to Germanic law. Thus we witness the writing of Germanic customs, it is the movement of medieval customs, they will only transcribe individually.

15th century - 16th century[edit | edit source]

Customs are written under the aegis of the sovereign power. This implies that each locality will write its own custom. We will have to have the Civil Code to have a legal law equal to all.

Canon law and Roman law with the emergence of universities are learned rights. The height of canon law was reached in Bologna at the same time as the glossators.

Gratien was to write an official collection of canon law, the Edict of Gratien, which would bring together the essentials of church law in a decree to be studied in universities. Very soon, this collection will become a reference.

In 1582 the corpus iuris canonici was published, taking over in writing all the canon law since Gratien's decree.

The School of Modern Natural Law[edit | edit source]

In modern times, a new conception of natural law is developing which sees law as a set of fundamental principles from which positive law should be directly derived.

The authors of the school of modern natural law seek the founding principles through the rational and critical study of human nature. These are obviously principles from which they could deduce all the other rules. In other words, these authors seek, through a critical study of human nature, the principles from which they will be able to deduce a certain number of rules.

The main character of this school is Hugo de Groot dit Grotius, publishing in 1625 De jure belli ac Pacis, a treaty on peace and war, making him the father of international law. In De jure belli ac Pacis is defined the sovereign power. Grotius defines it as one whose acts are independent of any other higher power and cannot be nullified by any other human will.

States, in their collaboration, must find a way to limit themselves in their relations, which is why they must accept the idea of a society legislated by law that limits sovereign powers.

The only force of law has coercive power that derives its notoriety from the nature of man, it is involved in the existing of man. For Grotius, God cannot make good what is bad, what is contrary to a society either. Natural law independent of the divine will is applicable to all men.

This natural right, independent of God's nature, is invariable as nature itself is. It is a universal right applicable to all men, a higher ideal of the higher principles of justice that should be imposed on all authorities, it is immutable.

One of these principles is "Pacta sunt Servanda", which establishes the framework of natural law, i.e. the recognition of the given word.

Grotius was the first to formulate these universal principles, but it was Samuel Pufendorf (1632 - 1694) who formulated an autonomous rational legal system based on observation and deduction as the basis of modern natural law.

Among the disciples of this school, which was to develop mainly in Germany, was Christian Wolf (1679 - 1754), who was to define the principles of natural law precisely and completely by applying the scientific method and the strict and detailed deductions from any rule of law in order to establish a coherent system of rules of law. His conception of law as a logical and scientific system will mark the practice of law in continental Europe. His method will influence judicial systems by following a logical deduction based on a fundamental order.

In the wake of this school of natural law are the philosophers of the asocial contract, notably Rousseau and Locke, who believe that legitimate government is the product of the voluntary consent of all free men. For Locke, it is "the voluntary agreement that empowers governments for the good of their subjects. These benefits are the protection of the natural rights of individuals who consent to governments in order to defend them: the right to life, property and security will become human rights and then fundamental rights. In other words, it is the rights resulting from artificial consent that the government must protect.

Before the codifications of the 18th century, continental law consisted of Roman law, canon law, Germanic law, also known as "customary law", but also the contribution of rights from the school of modern natural law.

The influence of the modern school of natural law is based on the principle of equality between individuals. This principle of equality will be reflected in private law, but also in public law with the principle of recognition of this equality in the constitutions that developed from the 18th century onwards in the United States and on the European continent.

For example, in Geneva, Roman law was applied, concerning construction we would refer to the custom of Paris, but also before the reform canon law influenced certain fields. With the development of the school of modern natural law, its principles are reflected in this law applied in Geneva.

In addition, there is national law, i.e. the imperial laws for the Holy Roman Empire, for Geneva the statutes adopted by the Geneva sovereign, for the cantons the regulations and the adopted charters representing national law.

This influence of the modern school of natural law will be the codification movement or the development of the first codes. It was in the states of Germany that the first codes were drawn up, Austria established a Civil Code in 1811, a Criminal Code in 1786 and a Procedural Criminal Code in 1788. Prussia developed a code that had several parts in 1894. The French Penal Code dates from 1791, the French Civil Code from 1804 and the Commercial Code from 1807.

This notion of coding and code is similar to the current codes. The modern notion of the code implies the formulation of the law in the form of general and abstract rules, it is no longer a question of compiling. These rules of law are ordered according to a systematic plan, i.e. by subject matter, and presented in the form of articles. The code as a whole constitutes a system, i.e. a set of considered rules that make it consistent. Finally, these codes result from an official promulgation by the sovereign authority and apply to all inhabitants subject to this sovereign power applying to all inhabitants.

Thus, these codes, which have been developing since the end of the 18th century, will incorporate into their provisions the rules contained in these four great traditions: Roman law, German law, canon law and the school of modern natural law.

The Swiss civil legislation applied since 1912 includes the Civil Code and the Code of Obligations adopted by the federal legislator has been inspired by these great traditions. Thus, one can arbitrarily consider that the Germanic tradition rather influences family law as well as inheritance law and real rights, while the canonical tradition also influences family law, the tradition of Roman law influences real rights and the law of obligations, while the school of modern natural law will promote fundamental rights and in particular the principle of equality while Wolf will influence the legal system and thus the codification movement and the elaboration of constitutions.

Common law and equity rules[edit | edit source]

Common law[edit | edit source]

The Common Law only considers Anglo-Saxon countries and does not affect continental Europe.

England of the first millennium is part of the Roman Empire undergoing Saxon Germanic invasions, angles and jutes. In these kingdoms, which were to develop in the British Isles as well as in continental Europe, the Germanic peoples would write down their customs in their own languages.

The British army took over the charge of the Norman cavalry during the Battle of Hastings.

In 1066, William the Conqueror invaded England and subdued it after the Battle of Hastings. It proclaims the maintenance of existing German law and the courts of justice that had been established. In other words, it invades, but decides to keep the system in place.

In parallel with the maintenance of Germanic law and their court of justice, William the Conqueror created new courts for the different regions of England, to which he put the lords at the head. Gradually, the new courts will replace the old ones, but they will still apply customary law. From the 12th century onwards, the king regularly sent representatives to attend trials in the various parts of his kingdom and monitor that justice was being served.

Itinerant judges are very well regarded and appreciated because their decisions are above local quarrels and pressures. The decisions taken are more impartial than the decisions of the seigneurial courts.

This justice would eventually break away from the king's court, becoming provided by delegates who would settle in Westminster where they would discuss local customs and the different sanctions given in the various trials they had to face in the kingdom. In this way they select the best solutions and reject unfounded solutions. Thus they will unify customary law.

At the same time, they are beginning to apply the principle of res judicata and respect for previous judgments. They adopt an attitude of respect for things previously judged.

During the 13th century, the Common Law was established. In order to protect the territorial courts whose revolts were feared, the royal judges only very slowly increased the powers of the royal courts.

Royal justice was to be confined to three areas that fell within the king's competence and authority, which applied throughout the kingdom:

  • royal finance: court of the Exchequer
  • land ownership: Common Plaids Court
  • criminal cases against the state: bench court

To assert his power and also to improve his income, the king will seek to extend his jurisdiction beyond these three areas with popular support. The royal courts had royal officers to impose sentences by force.

The development of these areas has been made possible by the procedures for bringing cases before the Royal Courts of Westminster.

In the event of a dispute it is essential to find a writ applicable in this case in order to satisfy the plaintiff. The defendant may also come to a royal court to explain why he considers that he is not obeying an injunction received.

The writ is an order to give reason to the one who gives royal justice, by this writ a whole series of royal justices will develop to the detriment of the seigneurial justices.

The system of writ originally adapted to each specific case will become stereotypical formulas that the chancellor issues for a fee without first examining the case. This is for royal justice is an excellent way to attract a large number of disputes, to see its cash flow improved and thus this way of doing things will provoke opposition from the barons who are feudal lords who will see their court of justice abandoned in favour of the royal courts. This seigneurial justice will oppose the practice of the chancellor, who by the writ, diverted from seigneurial justice disputes that did not fall into the category of finance, land ownership and criminal cases against the State.

After a period of conflict, a solution was reached with the status of Westminster, which would protect the interests of both the king and the feudal lords. The Chancellor cannot create new writs, but can issue writs in similar cases. However, many cases will also be included in the case of existing writ by applying the principle of similarity.

This is how Common Law developed on the basis of writs. In the event of a dispute, it is essential to find a writ applicable in this case. In this way, the royal courts throughout the Middle Ages would acquire the fullness of jurisdictions that would ultimately remain the only ones to exercise justice, while the ecclesiastical courts would only rule on matters relating to marriage or church personnel.

With the practice of the similar case, the seigneurial justices will disappear. It was the judges of the Royal Courts of Westminster who created the Common Law, these judges are professional judges unlike their colleagues on the continent they are not trained at university. These judges are above all practitioners who are trained as litigants, the judicial precedent has always been indispensable for the defence of the interests entrusted to them.

Being able to remind the court that it has already decided a dispute in this way gives the lawyer the best way to win his case. Thus, the Common Law is essentially a jurisprudential law based on case law, because the judge has an obligation to decide according to the rules established by judicial precedent.

Equity[edit | edit source]

During the 14th and 15th centuries, the Common Law became too limited. Economic and social developments are creating new areas that cannot be addressed by the Common Law. From then on, the litigants will appeal to the king, highlighting the exceptional nature of their approach. The king is basically a "fountain of justice".

The king will not judge according to the law, but according to his conscience, that is, in equity. The court of the chancellor who exercised this jurisdiction on behalf of the king was not limited to the rigidity of the Common Law procedure, which frustrated many disputes for defects of form.

Nor was the equity procedure a cure for common law, but created new tools that were more flexible and adapted to the needs of the parties. Thus, the chancery court became very popular and the disputes brought before it became more and more numerous, to the great displeasure of the Common Law judges who saw their incomes drop considerably.

A period of conflict has once again opened up between Common Law and Equity judges, which finally leads to a compromise. In the event of a conflict between the Westminster justice and the Chancellor's justice, it is decided that equity prevails. For the matter to be settled definitively, it was not until the 18th century that the Royal Courts of Justice, the Westminster Court and the Chancellor's Court were consolidated into a higher court, where the two sources of law could be used jointly and interchangeably. In the event of a conflict, equity always took precedence.

Continental rights are codified rights, but in England this notion of code is totally unknown. The Enlightenment and the French Revolution with its codification of the rules of law caused a turning point in continental countries, turning completely ignored by England, whose lawyers continue to invoke court decisions dating back as far as the 18th century.

Anglo-Saxon law has not been influenced by Roman law because it is a judicial law. Thus, the countries that apply the Anglo-American system make case law a real formal source of law, because the judge must first of all look for whether an identical case would not have been decided earlier. If there is a precedent, the judge is obliged to apply it. Conversely, if the judge decides a new case, his decision obliges all judges of the same or lower rank for the future. This rule of precedent leads to the formation of a jurisprudential legal system called Case Law, which is the law formulated in judicial cases.

Annexes[edit | edit source]

References[edit | edit source]

  1. Publication de Victor Monnier repertoriées sur le site de l'Université de Genève
  2. Hommage à Victor Monnier sur le site de l'Université de Genève
  3. Publications de Victor Monnier sur Cairn.info
  4. Publications de Victor Monnier sur Openedition.org
  5. Page personnelle de Victor Monnier sur le site de l'Université de Aix-Marseille
  6. En Hommage À Victor Monnier.” Hommages.ch, 11 Mar. 2019, www.hommages.ch/Defunt/119766/Victor_MONNIER.
  7. Le nom de consiliateur vient de consilium, la consultation. On les nomme aussi les Bartolistes du nom de Bartole.