CIVIL LAW AND COMMON LAW AND ROMAN LAW

1. The Roman Institutes and Justinian’s Compilation

- Justinian’s Institutes (533 AD):

- The Institutes were a part of Justinian's codification of Roman law, known as the Corpus
Juris Civilis. This work was divided into four parts:
- The Institutes (introductory text for students, a comprehensive overview of Roman legal
principles),
- The Digest (a collection of legal opinions),
- The Codex (imperial enactments),
- The Novels (new laws issued after the Codex).
- The Institutes were influenced by an earlier work, The Institutes of Gaius (2nd century
AD), which presented a systematic legal structure.
- Justinian's aim was to create a unified legal code that would endure for centuries. The
Institutes introduced law students to the basics of Roman law, presenting a conceptual
framework still influential today.

- Division into Public and Private Law:

- In Inst. 1.1.4, Justinian's Institutes state that law is divided into public and private law.
- Public law governs the state's administration, criminal law, and other matters affecting
society as a whole.
- Private law regulates the relationships between individuals, such as property ownership,
contracts, and inheritance.

- The Threefold Division of Private Law:

- Private law is further divided into three main categories:
1. Persons(the status of individuals, such as citizenship and familial relations),
2. Things (property and possessions),
3. Actions(legal procedures for resolving disputes).
- This categorization established a systematic framework that distinguished the objects of
legal regulation (persons and things) from the procedural mechanisms (actions).

- Scientific Foundation of Roman Law:

 - Roman law was grounded in a methodical and logical structure, borrowing from Greek
philosophy's approach to knowledge.
- The Romans aimed to create a legal system that was coherent and systematic, making law
both a practical and an intellectual discipline.
- The Institutes were structured in a way that allowed students and jurists to navigate the
complexities of Roman law through a logical flow from concepts to practical application.

2. Key Divisions

- Distinctions in Roman Law:

- The primary division in Roman law was between corporeal (physical, tangible) and
incorporeal (intangible, such as rights and obligations) things.
- Property was classified into real (immovable, like land) and personal (movable, like
goods) property. This distinction is still prevalent in modern law.

- Obligations:
- In Roman law, obligations were treated as incorporeal things and were categorized into
contracts, quasi-contracts, delicts (wrongs), and quasi-delicts. This was one of the major
Roman contributions to the structure of legal obligations in civil law.
- Contracts involved agreements made voluntarily, whereas quasi-contracts covered
obligations arising without mutual consent.
- Delicts referred to civil wrongs (torts), and quasi-delicts involved wrongs that did not fit
neatly into standard categories of delictual liability.

- Actions:
- Actions were the means by which rights were enforced in Roman law. They were
classified into real actions (in rem) and *personal actions (in personam).
- Real actions involved claims to things, like asserting ownership of property, while
personal actions involved claims against individuals to enforce an obligation.
- Mixed actions combined elements of both real and personal actions, such as partitioning
property or dividing common assets.

- Roman Influence on Civil Law:

- The structural approach of the Roman legal system heavily influenced modern civil law
systems, particularly in continental Europe.
- The division of private law into persons, things, and actions forms the basis of many legal
systems today, influencing how courts categorize and adjudicate disputes.
3. Common Law Structure

- Origins in Norman Conquest (1066 AD):

- The development of English common law began after the Norman Conquest in 1066,
when William the Conqueror established a centralized system of justice to maintain order and
control over land.
- The early common law was primarily concerned with feudal disputes, especially over land
ownership and tenancy, reflecting the importance of land as the primary source of wealth and
power in medieval England.

- The Writ System:

- The common law grew out of a system of writs, which were formal orders issued by the
king to his courts. A writ specified the legal issue to be resolved and determined the type of
action that could be brought.
- The writ system was highly procedural. Each writ corresponded to a specific legal remedy,
and a litigant needed to choose the correct writ to bring a claim.
- This focus on procedural forms led to the common law’s distinctive reliance on precedent
and the development of detailed rules for each type of action.

- Forms of Action:
- Early common law was primarily a system of actions rather than a system of rights. The
key concern was not what rights a person had but which action they could bring to enforce
those rights.
- This approach contrasts with Roman law, which emphasized substantive rights over
procedural remedies.
- The writs began to standardize by the 13th century, limiting innovation in common law.
New writs required the approval of Parliament, solidifying the procedural focus of English
law.

4. Bracton’s Influence

- Bracton’s De Legibus et Consuetudinibus Angliae:

- Written in the 13th century, Bracton’s treatise attempted to systematize English law using
Roman law as a model.
- Bracton drew heavily on the Roman institutional scheme, particularly the division into
persons, things, and actions, although English law did not fit neatly into these categories.
- Substantive vs. Procedural Law:
- Bracton’s work represents one of the first attempts to provide a systematic account of
substantive English law, as opposed to merely focusing on procedure.
- He discussed a range of legal topics, including property law, obligations, and legal
procedures, seeking to provide a comprehensive legal system.

- Adoption and Adaptation of Roman Law:

- Bracton adopted many Roman legal concepts, such as the division between actions in rem
and in personam, but he had difficulty fitting English legal procedures into Roman categories.
- For example, in English law, personal actions could sometimes be used to claim movable
property, whereas Roman law strictly separated claims for property and personal obligations.

- Mixed Actions:
- Bracton also identified a category of “mixed actions,” which dealt with disputes that
involved both property and personal claims. This concept reflected the complexity of English
legal disputes, which did not always fit neatly into Roman legal classifications.

5. The Late Medieval Common Law

- Separation from Roman Law:

- After Bracton, the influence of Roman law on English common law waned. English law
began to develop its own unique path, focusing more on writs and procedural remedies than
on the Roman system of rights.
- Legal education in England moved away from Roman law, and English legal practitioners,
trained in the inns of court, became more focused on practical legal procedures than
theoretical classifications.

- Development of Trespass and Assumpsit:

- One of the key developments in late medieval common law was the evolution of the
action of trespass. Initially, trespass required a violent breach of the peace, but over time, it
expanded to cover non-violent wrongs (trespass on the case).
- Assumpsit, originally a tortious action, became the main action for enforcing informal
contracts. This shift blurred the lines between contract and tort, as lawyers used procedural
flexibility to adapt actions to their clients’ needs.

- Focus on Actions over Rights:

 - In the late medieval period, common law was still primarily focused on actions rather than
substantive rights. Lawyers tailored their cases to fit the available actions, and the success of
a claim depended on procedural technicalities.
- This procedural focus meant that the structure of English common law remained distinct
from Roman law, which placed more emphasis on the systematic classification of rights.

Conclusion

The document outlines the gradual divergence between the Roman legal system, with its
emphasis on systematic classifications of rights and obligations, and the English common
law, which developed primarily as a procedural system based on writs. While early English
jurists like Bracton attempted to incorporate Roman concepts into English law, the practical
nature of common law led to a focus on actions and remedies rather than substantive rights.
Over time, this led to the unique development of common law, which remained separate from
the civil law tradition that grew out of Roman law in continental Europe.