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Civil Law the Term Is Ambiguous, Refering on the One Hand to Things

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Civil Law the Term Is Ambiguous, Refering on the One Hand to Things Civil Law The term is ambiguous, refering on the one hand to things like lawsuits, or else to “Roman-based law”, refering to the legal systems of Germany, France, and numerous other countries. Within Roman law, it refered to a specific sub-part of “the law”. For the moment, we’ll be speaking of civil law in the sense “Roman-(derived) law”. The precise form of words of actions, and not intention, matters most in Roman Law, be- cause as the Romans noted, there can only be objective records of actions and words. “Civil Law”, Latin jus civile, was distinct from jus gentium. The legal commentator Gaius states “...the law which a state establishes for itself is peculiar to such state, and is called Jus Civile, as the peculiar law of that state. But the law which natural reason has established among all mankind is equally observed by all people, and is called Jus Gentium, as being that law which all nations follow.” The origin of jus gentium, a kind of natural law, was the law pertaining to free men and women in Roman territory who were not Roman citizens: jus civile did not apply to them, only to Roman citizens. One of the foundational documents of law in Rome was the Law of the Twelve Tables, composed around 450 BCE by a commision of ten officials, the Decemviri “10 guys”: these were engraved on bronze plates and set up in the Forum. The second, and most influential source of Roman law was ordered by the Byzantine emperor Justinian I and compiled by Tribonian collectively known as the Corpus Juris Civilis, or simply the Justinian Code, from 529-534 (the first date is for the unknown first edition, which was anned). Since the Byzantine empire in- cluded only a little bit of Europe (give or take military campaigns) and the Justinian code was not actually the law of the land in western Europe, and was only discovered in some Italian li- brary in the 11th C, whereupon it became the object of great university study esp. in Bologna. The Justinian Code brought about later codifications during the 18th C in Germanic states Prus- sia, Baviaria, Saxony, and Austria, and most famously the Code Napole−on (1804-1811). Common Law A system of law developed originally in England, used in the UK (not Scotland), also said to be used in US (not Louisiana), Canada (but not Quebec), Ireland, Australia, New Zealand, South Africa, India, Malaysia, Singapore, Hong Kong, i.e. numerous former English colonies. Com- mon law is based on “the custom of the realm from time immemorial” (Blackstone), where court decisions for ordinary disputes are guided by common sense principles. Anglo-Saxon law was based on general Germanic rules, and crimes were seen as wrongs against the victim, who is to be compensated. Anglo-Saxon law had a fair amount of ritual content to it, so for example if a person is accused, they defend themselves by uttering a ritual phrase, swearing swear “By the Lord, I am guiltless both of deed and instigation of the crime with which N charges me”, and the oath- helpers then swear in support of M’s claim to innocence: “By the Lord, the oath is pure and not false that M swore”. Legal concepts changed under the Normans, and started to be regularized, where major wrongs were seen as crimes against the public. Government centralization led to uniformity and greater codification of law, which started as codified custom, such as The First Statute of West- minster (1275) codifying 51 existing laws. Legislation began to play a more important role in law starting near the end of the 13th C., with the rise of the House of Commons. Thereafter be- gins the complex interplay between this standardized law “declared” by royal judges and parlia- mentary statute. While common law was rooted in local custom, common law was, as the name implies, common to the nation as a whole and would overrule local custom. The first coherent theoretical statement of English law was Henry de Bracton (ca. 1210- 1268) On the Laws and Customs of England, a work emphasizing procedure and judicial deci- sion. Commentaries on the Laws of England by Sir William Blackstone (1765-9) and Halsbury’s Laws of England are the essential reference works on English common law. The latter is consid- ered to be the definitive encyclopedic statement of English law and includes all statues and common law propositions (the current 4th edition has 56 volumes). The classic US thought-piece on common law is the short The Common Law by Oliver Wendell Holmes Jr., and The Corpus Juris Secundum: Complete Restatement Of The Entire American Law As Developed By All Re- ported Cases (1936- ) is 101 volumes is, as the title implies, the US equivalent of Halsbury. The two most important features of the common law are (1) the reliance on juries to make factual determinations (2) the power of judges to determine law by making precedent-setting de- cisions. The effect of this is that appeals have to be based on judicial error, for example the judge improperly instructs the jury to disregard some fact, or rules that the jury cannot be told some fact, or mis-instructs the jury about a relationship between fact and conclusion (i.e. “if you find X then you must conclude Y”). It is assumed as a matter of principle that jurors do apply the law to the facts. The US version of the common law is different from the UK version, in being more codi- fied. In England there is no statute against murder, which is a common-law offense (jus gentium, natural law), whereas everywhere you go in the US there is a statute prohibiting murder. How could it matter that there is no statute against murder? After all, there is still the unwritten law against murder, and murderers are prosecuted and punished in the US and the UK both. But how do you define murder? How could there be any question? (What is felony murder: see chapter 2903, Ohio Revised Code). In the US (in contrast to the UK), crimes are almost always statuto- rily defined. California has a statute stating that there are no common law crimes; Kentucky had (or has) a common-law crime of criminal libel (see Ashton v. Kentucky, 384 U.S. 195 (1966)). Statutes may affect non-criminal law, for example the tort of “wrongful death” is not part of common law and is not recognised in England. Ohio has a wrongful death statute (ORC 2125.01) that allows recovery by the heirs. Basically, under common law you are entitled to sue if you yourself have been harmed, but you cannot sue on behalf of someone else, and you cannot sue if you are dead. The statutorily defined wrongful death tort changes that ˜ if your state has it (it does, for all 50). The current political chatter about tort reform is about limiting the amount of money that can be awarded in a lawsuit under the category “punitive damages”, which are not part of the common law tradition (but are statutorily allowed in lawsuits)..
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