Latin American Law RomanEuropean Law Revival Ius Commune

Latin American Law Roman-European Law > Revival > Ius Commune > National Laws Last updated 12 Sep 11

Lex Mercatoria. . . Trevor Ostbye: why not Roman law? Jim Rodden: role of scholar in each?

Law merchant E-commerce law Trevor Ostbye: how has Ebay created law merchant / good or bad?

William Murray, 1 st Earl of Mansfield • British judge, House of Lords • Father of “English commercial law” – Based on Roman and law merchant – Defined principles of commercial law • So consider origins of UCC – “trade usage” / “just price” / “good faith” – Karl Llewellyn / Soia Mentschikoff Lord Mansfield (1705 -1793) Trevor Ostbye: Why not rely on common law?

Venice (law merchant) Delaware (corporate law) NCBusiness. Court. net Jim Rodden: But where did corporate come from? courts? how many USstructure states have business

Why study “Roman-European” law …

Value of knowing other legal systems • • Model for borrowing Gain perspective Discover truths Impose / power

Revival and spread of Roman law … What if there had been no CJC?

Taryn Kadar: Socratic Disputatio (Dialectic) Winslow Taylor: University of Bologna Sam Wellborn : Are glossators and their technique dead?

Legal education in former Communist countries • “Many of the students … were confused when US students raised their hands and challenged the professor” • “One of the first consequences of the Bolshevik revolution was to abolish faculties of law. ” • “As countires have moved away from totalitarianism, one can see more positivist legal education and ideas of the scholastic method” Taryn Kadar

Roman law (CJC) Glossators (12 th-13 th C) Unwritten customs Canon law Local law Mos italicus (Bartolus – 14 th C) Mos gallicus (French jurisprudence) Ius commune (14 th-16 th C) Sam Wellborn: Can EU have civil code? EU civil code?

Bartolus de Sassoferrato (1314– 57) nemo jurista nisi bartolista "nobody is a jurist unless he is a follower of Bartolus“

4. Bartolus, Consilium 128 Franciscus had as his wife a certain Thoma, and he had a dowry of 200 florins. This Franciscus died and left some minor sons, with whom the said Thoma, the mother of the said sons, continued to live for three years. Then she entered a second marriage, and had stayed with that man for three years, when that second husband demanded his wife's alimony from those heirs of the said Franciscus. The question is whether alimony is owed and for what time. In this question it must be examined why this alimony is demanded, whether it is demanded on behalf of the mother who should be supported by her sons, and then it is a question to be decided by the judge, and must be denied: For she is owed support by her husband, in whose service she is, as in Digest 13, 6, 18, 2. . . And this is my opinion. Bartolus.

Compare: • Role of judges in formulating law in ius commune and judicial role in the US • Role of scholarship in ius commune and in US law • Ius commune on Continent and British common law Sam Wellborn: Is statutory or judge-law more legitimate?

The life of the law has not been logic, it has been experience - OWH Winslow Taylor: role of legislature in ius commune?

Development of national laws …

Roman-Dutch Law • Dutch-Roman jurists – – – Elegant humanism Cosmopolitan (Spanish influence) Look to court decisions • Natural law “Law and Economics” and “Law and Society” … represent a higher level of abstraction because rather than being concerned with the internal consistency of the law system Paul Monroe Grotius “father of Roman –Dutch law”

Roman-French Law w. Parlements n n n Judicial, hereditary office Arrets de reglament Refuse royal ordinances w. Replaced by revolutionary law Paris – North (pays de coutume) Midi – South (pays de droit ecrit)

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Ancient legal education, while much shorter, resembles US legal education in a number of interesting ways. Jay Frantz Are elected judges consistent with role of fungible, replicable judges? Michael Lennox Should judges be “activist” or “civil servants”? Caitlin Torney Why don’t US judges pay more attention to scholarship? Michael Lennox

Usus modernus Pandectarum