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The Common L aw and the Roman Institutional System

The Common L aw and the Roman Institutional System. Group 1 Comparative European Legal History 14-02-21. The Roman Institutes : the main division Consisted of four books Dealt with private law (and criminal law ) All law : (1) persons

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The Common L aw and the Roman Institutional System

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  1. The CommonLaw and the Roman Institutional System

    Group 1 Comparative European Legal History 14-02-21
  2. The Roman Institutes: the main division Consistedof fourbooks Dealtwith private law (and criminallaw) All law: (1) persons (2) things (3) actions
  3. The Roman Institutes; the maindivision All things: (1) corporeal (2)Incorporeal All corporealthings: (1) rights of use and enjoyment in real and movable property (2) estates by inheritance (3) obligations
  4. The Roman Institutes: the maindivision All obligations: (1) contracts (2) quasi-contracts (3) wrongs (4) quasi-wrongs
  5. The Roman Institutes: the maindivision All actions: (1) real (2) personal (3) mixed
  6. The Roman Institutes: the mostimportant division Actio in rem: directedagainst a thing Actioin personam: directedagainst a person Division based on substantive law
  7. The Battle of Hastings, 1066 - Normans, Normandy (France), William the Conqueror) - Feudal system  new rulesconcering suppression of violence and land - Private claims in localcourts  not a part of development  feudallaw Writ – access to the royalcourts - Actions - Determinedwhich substantive and proceduralrules - Provided the framework of the legal system - No system, but division intocategories - All parts of the country = ”Commonlaw” Meanwhile on the continent…

    The beginning of commonlaw

  8. RanulfGlanvill ”De Legibus et ConsuetudinibusRegniAngliae”, 1187-1189 Inspired by Roman and Canon law
  9. Pleas (writs) Civil pleasCriminalpleas Royal Vicecomital Royal Vicecomital PropertietaryPossessory
  10. Henrici de Bracton De Legibus et ConsuetudinibusAngliae, ca 1250 Partly Roman, partly English Roman division of actions – hard to fit English material into it ”It’sdangerous to play with foreign terms unlessweknowverywellwhatwe are about”
  11. Henrici de Bracton Basic division of law Persons Things Actions 2) Things a) division of things b) acquisition of things
  12. Actions (3) Actionsgenerally Criminalactions Civil actions a) real actions b) personal actions c) mixed actions
  13. Late Medieval CommonLaw Roman law not influential after Bracton Actionspoint in focus Expansion of writs (even to remedycontractualwrongs) Law and equity Action: In rem and in personam Property: real and personal

  14. William Blackstone1723-1780

    Commentaries on the Laws of England BOOK I: The Rights of Persons BOOK II: The Rights of Things BOOK III: Private Wrongs BOOK IV: Public Wrongs Justinian’s Institutes: Persons, things, actions, and crimes..?
  15. Blackston’sview Well acquainted with Roman law and civil law. No intention to apply the Institutional scheme to the English law. Law as a comprehensive system based on substantive law. Division of the rights of persons into absolute and relative. The rights of things are divided between: (1) real (those are immovable), and (2) personal (those are movable). Torts and contracts are divided between: (1) persons, (2) things, and (3) wrongs.
  16. The conceptof real and personal Both Institutes and Commentaries. The allocation of actions under the new substantive law categories led to differences between the systems of the common law and the civil law. Actions were associated with a substantive law to classify them. It connected the English terms of real and personal actions with the Roman concepts of contract, tort and property.
  17. Developmentof 19th century Systematic textbooks which treated the law according to substantive law rules rather than lists of actions. “A silent revolution”. Influence of German Pandectists, who studied and taught Roman law. The forms of action were abolished in the 19th century.
  18. The Civil Law All law of continental Europe: traced back to the Roman institutionalscheme ’Things’ wasabolished
  19. The Civil Law New system: (1) general part (2) persons (3) property and law of inheritance (4) obligations (5) procedurallaw 'Rights' instead of 'Actiones’ 'Quasi-contracts' disappeared
  20. The Civil Law Division between: (1) absolute rights (2) personal rights
  21. The structureof common law Division of the law into a substantive and a procedural part Division of the substantive part into the major categories of property, contract and tort. This system is based on the model of the Institutes
  22. Historicaloverview No comprehensive reception of the Roman law. No intention to adopt the Roman law in its entirety. Notions of property, tort and contract in the sense used in Roman law had existed since the middle ages but not as consolidated entities. They were dispersed under different actions. So the actions had to be broken up and distributed under the system encompassing property, contracts and torts. “The forms of action we have buried, but they still rule us from their graves.” - Frederic William Maitland
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