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Today’s Lecture:

Rome, Common Law & Courts

1. Law in Rome

2. The Development of Courts and Common Law

Lecture Organization:

• Brief Review

• A Story of Law in Rome

Time

• Absolute Monarchy & Law

• Historical Development of Courts in England

Class Announcements

Missed First Class

-- Read syllabus, review online help, review slides.

-- Lecture will be posted on my website soon

Questions?

In the beginning

-- period of concern: 510 B.C. - 287 B.C.

-- Before this, Rome had Kings

-- Kings overthrown in 510 B.C.

Res Publica

“Thing” “The Public’s”

Republic

-- The word “Senate” = “old folks” or “elders”

(people who had always been around to give advice to the King )

A story of “law” in Rome


In the beginning

-- definition (natural elites by birth)

-- has always been present

-- theory of why:

(a)strongest male dominates in a ritual of conflict

(b)His bloodline considered sacred

Aristocracy

Superstition


In the beginning

-- Rome called its aristocrats “Patricians.”

-- Julius Cesar was from a patrician family called the “Julians.” Claudius was a “Claudian.”

Patricians

Plebeians

-- Non-patricians and non-slave

-- ordinary working people. (merchants, shopkeepers, laborers).

“Plebs”


In the beginning

-- After getting rid of Kings, Rome forms a Senate to rule

• only Patricians are eligible to be elected

• By 510 B.C. = 50 patrician clans.

• families comprise about 10 % of the free population

Government


In the beginning

-- Stereotype: Italian Mafia families

• Patricians were sort of like “bosses”

• highly patriarchal, hierarchal society

• fathers have the power of life and death over their sons

• groups of families “belong to” higher level patrons

• think of Patrician families having “crews” involving other lower-level families

Culture

Heads of patrician families were thought to be the “fathers of the country.” It was their duty to govern – to set the tax burden and decide when to wage war.

The rise of “law” and republic

-- over time, plebs want more rights

-- resort to strikes, shutting down the economy

-- the net result of these strikes was to get their own political assembly.


Plebeian Assembly

-- at first, didn’t have any law making authority; it was more like a union hall.

-- could organize their people and officially petition the Patrician Senators for relief of their grievances

Plebeian uprisings

You didn’t have any place to shop. You couldn’t get goods manufactured. Traders had no one to trade with. No clothes were getting cleaned. Kids are not getting watched. Can’t go to war with 55 generals and no foot soldiers.

Source -- Frances Titchener (Paraphrased)

Question:

What do you think the first major reform was

that the Plebeian Assembly demanded?

-- one of the first reforms that the Plebeian Assembly wants is for the Patricians in the Senate to State the law.


“State the Law”

Question:

Why?

Answer:

To avoid arbitrary and capricious rule

(explain).

Answer:

To have Rules.

The rise of “law” and republicCreation of Positive Law

The first thing the plebs wanted: we want to know what the laws are. Write them down. (Today it is reversed: ignorance of the law is no excuse). In Antiquity, there is a pattern that emerges in the polities: autocratic ruler, after some time, is forced to create a law. Without it, the person rules on a whim. Today the king is in a bad mood and says the penalty for stealing is death; tomorrow it is just a whipping. We have to create “rules.” Next step: the rule has to be written down. Patricians: “you don’t have to worry about the law; that’s our business: you just ask us and we will tell you.” Plebs fight to get rules written down. Law is immutable. Stands apart from the Ruler. But this wasn’t enough: just because a Magistrate said “the law is” you didn’t know for sure. So they demanded: post the law. Law had to be formulated, written down and posted (published).



Twelve Tables

-- Note the basic idea: Law is what the Lawgiver Says

• the parents command to the child

• the superior’s command to the subordinate

-- lack of specificity – sort of like the 10 commandments.

• Patricians and Plebs cannot marry

• Debtors have 30 days to pay money before their freedom is forfeit.

• Penalty for perjury is death



Code of Hammurabi

-- previously thought to be the first (1700 B.C.)

-- Babylonian king

-- an eye for an eye

• penalty for theft was cutting off the finger or hand

• a man’s lower lip was cut off if he kissed a woman

• defamation was punished by cutting out the tongue

• if a house collapsed, killing the owner; the builder was put to death; if his son died, the builder’s son was put to death



Urukagina’s Code

-- appears to date as early as 2350 B.C.

-- lays down the law of the Mesopotamian kings

• subjects had a right to know why certain actions were punished.

• Thieves and adulteresses were stoned to death

• stones had the name of their crime inscribed

• the King was appointed by the Gods



-- The next thing the Plebs are going to demand is for various examples of Due Process:

• access to the Senate (notice, not surprise & privacy)

• right to appeal magistrate rulings (when they lose in the “courts”)

• access to the Priesthood, etc.


“Due Process”


-- They want the right to make laws that apply to the Patricians!

-- Previously, they only had authority to govern their own class (members)

-- Now, in essence, they are asking for the Roman Republic to have a bicameral law-making assembly, with an upper and lower “chamber”

-- They get it in 287 B.C.


“Lex Lotensia”Creation of Bicameral Legislative Institutions?

287 B.C: there was a big happening: Lex Lotensia. “Lex” is Roman for “law,” and it is a feminine noun. Laws are named after the sponsor’s feminized name. All of Julius Caesar’s laws were called Lex Julia. This law was proposed by Hortensius. It said that any legislation passed by the Plebian assembly would apply to Patricians.


The ultimate lesson to learn from all of this


-- one day, Plebeians decide to take up the issue of land reform in their political assembly.

-- the Patricians are hogging all of the land; in these days, land was power

-- Theoretically, all they would have to do is pass a law, correct?

Land Reform

Question:

What do you think happened?

Answer:

300 Plebeians political leaders were clubbed to death in the Streets of

Rome by Patrician “goons.”

Answer:

In short, they “whacked them”

Question:

Why didn’t the plebs simply call the police to restore order or protect

them?

Answer:

The patricians were the police. The bosses are not underground; they are a legitimate part of Roman

society and culture

Question:

What does this say about the rule of law?

Question:

What is “law” in the story of Rome as I have

described it?The Rule of the Will of Powerful Clans

Might Makes Right

-- Having just talked a little about Rome, I want to talk about Kings and absolute monarchy.

-- Note that in the story of Rome, the Patricians had managed to overthrown Kings in order to get the republic started

Absolute Monarchy & Law

Question:

What is the basic difference between Kings and

Patricians (Aristocrats) from the standpoint of describing

an authority structure?

Answer:

Patricians/Aristocrats are like a council of Kings

whenever there is no real King. Together, they are the

ultimate source of power powerful.

Answer:

A King, by contrast, is nothing other than the strongest Patrician or

Aristocrat who comes to dominate the other elites.

An elite within an elite.

Introduction to Kings

Answer:

(you will note that Caesar, a Patrician Julian, will

eventually rise to power and disband the Senate,

ending the Roman Republic).

-- Most societies throughout Europe (and probably elsewhere) were ruled by Kings, not by Aristocrats

-- Kings still had to “politic” or be strategic in how they handled Aristocrats, just as patricians had to be careful how they handled plebeians.

-- No king was ever truly absolute

-- Nonetheless, the power of medieval Kings was always rationalized as though it were absolute

Divine Right

Introduction to Kings

-- Divine Right suggested that the King was God’s chosen agent on earth to be the Landlord of that particular country. (e.g., England)

(church would support monarchy)



-- This held that God had preordained the entire aristocratic social order

-- Basic idea: God had put everything in its place

-- That within the hierarchy, there were sub hierarchies.

-- Within each sub hierarchy, there were further ranks

Chains of Being

1. God

2. Angels

3. Man

4. Animals

5. Plants

6. Stones

1. God2. Angels

seraphimcherubim

3. Mankingpeasant

4. AnimalsLionCockroach (snake?)

5. PlantsMighty Oakclover? Moss?

6. StonesRegal diamond?? Gravel ??

Monarchy:

• King

• Queen

• Prince

• Princess

Nobility:

• Duke

• Marquis

• Earls

• Count

• Viscount

• Barons

absolute v. limited monarchy

-- In an absolute monarchy, the king was the sovereign (the lawgiver), as provided by divine right.

-- how the power of “statute” came about

• King would write down and place his signature to important laws.

• Sometimes, for political purposes, he would have both himself and the nobility sign extremely important pronouncements so that they appeared more powerful (e.g., taxes, war)

(Parliaments had to be convened for this purpose)



-- as time went by, Parliament gained more legitimacy this way and eventually would rise up to share legislative power.

(This happens around the 1600s in England, and is generally called limited monarchy or constitutional monarchy)

-- But for now, let’s ask a question: Question:

Is there “law” or “the rule of law” in an absolute

monarchy?

Question:

Can something be “law” if it doesn’t apply to

everyone?

illustration

TimelineT-1

King Rooney

T-2

King Belichick

Must King Belichick follow King Rooney’s Law?

The King can dispense with the law by mere statute

Dispensing Power:



-- POINT: must law apply to the law-makers before it is considered “law?” (The monarch doesn’t veto the law, he dispenses it)

-- mention Henry VIII and the Catholic Church.


Monarchs and courts

-- courts during early and medieval history tend to be creatures of the executive.

-- Consider the phrase, “The King’s Court” (King’s courtyard)

-- designed to implement the will of his majesty

The Sovereign

“courts”

Various names:

• Magistrates

• Chambers

• Councils

Privileged participants:

• Clergy

• Aristocrats

Historical Development of Courts & Common Law in England

-- Henry I (1100-35); Henry II (1154-89)

-- Basic concern: improve how disputes were being handled in the country

-- make the customs and traditions uniform (“common law”).

Improving the court system in the realm


Magna Curia

-- “Great Council”

1. Landed barons

2. Church elders

3. Kings

-- travel to locality

--take down story

--go back and talk to "Elders”

Knights and their methodology


Writings

-- Knights would write down the case resolution

(monks would keep the law on sheep scrolls)

Idea: what was commonly done in the past

Caution: Advertisement only

First early recordation of the “common law”

-- each particular circumstance (case resolution) became its own “cause of action”

-- a writ system developed (standardized causes)

(notice the term “writ” today: Writs of Execution, Writs of Habeas Corpus, etc.)

Writ System


Jurisdiction & local judges

-- As the system developed into distinct causes of action, it also developed distinct jurisdiction

-- Knights started staying in the territories under assignment. Sort of functioning as trial judges. (presiding)

-- people started hanging around the courthouse and learning the protocol. Some citizens became experts in how to file pleadings and how to obtain these magical forms (Writs).

-- early development of lawyers

Inns of Court


Hypothetical Illustration of the Common Law Orthodoxy


Battery

-- Case #1: someone beats someone up:

The Elder’s resolution: “The right to swing one’s fist ends where the other’s nose begins”

Basic Idea: maxim or platitude extracted from a preferred cultural tradition by the Great Elders – the keepers of the sacred practices.



Battery

-- Case #2: someone beats someone up who was trying to beat him up:

The Elder’s resolution: “He who protects his body is without wrong.”

Self defense



Battery

-- Case #3: someone beat s up a trespasser his own property:

The Elder’s resolution: “He who owns reality can eject trespassers with force after warning.”

Right to expel trespassers



Jury Function

-- today, juries decide the facts, not the law

(compare: Socrates -- jury was not so confined)

-- How did this modern role come about?

Lord Coke’s Maxim (pronounced “cook”):

“Where reason stops, the law itself also stops.”

Suggestion: Judges are the ones who do the reasoning;

E.G., whether O.J. did it isn’t a matter of logic; its one of proof or facts. Jury looks and sees; judges define.

Basic Advertisement for the Orthodoxy


-- Sacred cultural tradition as known and KEPT by the Elders

(Gandalf). (The Council of Elrond)

An “Ideology” of jurisprudence?

-- The claim is that ALL kinds of disputes could be resolved this way.

-- The resolution was “correct” and the collected decisions themselves constituted a kind of “knowledge”

Caution: Advertisement only

Let’s try some examples of the craft


• Seinfeld Parking Incident

•Cashier at Giant Eagle using a tip jar

• Tipping at a Buffet

Precedent


precedent.

1. PRE-cedes – the outcome came before the decision.

(compare: antecedent)?

2. To set a “precedent” means it shouldn’t be broken.

3. The phrase for this is stare-decisis

– shortened for a longer Latin phrase that means “to stand by the decision and not to disturb that which is settled.”

Lawyers


A new profession would soon emerge: Needed people to master the writs and scrolls so they can take this new form of law to the people. Legal profession starts as an apprenticeship.


Court System

• distinction: criminal versus civil.

• Court of the Common Pleas (1230)

-- recognized 500 different kinds of actions

-- could issue awards for money damages, try criminal cases

• Court of the king's bench

-- appeal court

• Court of Exchequer pleas

-- tax court (King didn't trust knights to collect the money)

1. The Story of England! (continued)

1. The Development of the Court system:

1. Court of the Common Pleas (1230)

2. Court of the king's bench

3. Court of Exchequer pleas

2. The Court of Equity

1. Involving clergy

1. Court of Chancery (1474)

2. A system of fariness, not “law”

3. example: feme sole estate

4. Question: is this any different from the other system?

5. Equity today.

check sound check mike time today’s lecture: rome, common law & courts 1. law in rome 2. the...

Documents

rise of law

romea story of law

plebsa story of law

common law courts1

aristocrats patricians

patrician senators

patrician family

patrician clans