TOPIC 1.Old Order and legal pluralism the culture of european Common Law.pdf

8/11/2019 TOPIC 1.Old Order and legal pluralism the culture of european Common Law.pdf

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TOPIC 1

Old Order and legal pluralism:

the culture of europeanCommon Law


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THE FOURTEENTH CENTURYA changing world

The Middle Age was a period of paralysis ofknowledge, arts, sciences and law.

The great influence of religion, the successive

wars and rigid feudal society preclude the socialprogress and produce delay in many areas.

The medieval man forgot the classical tradition.

The change will occur in the fourteenth century. A series of events beginning of a great

transformation in almost all areas of society.


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The fourteenth century was a period of transitionbetween the Middle Age and the Renaissance.

It is the end of a long period of cultural, social

and scientific darkness. Events happen in this century that will transform

the world.

Both in the way of understanding and theconception of the individual. These changes will affect decisively the law and

its configuration within the emerging modernstate.


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Theocentrism is progressively replaced by anew anthropocentrism that pervades allsocieties and the law.

The society dominated by a religious conceptionis gradually replaced by an human conception.

It is the prelude to modern legal settings in whichthe outlines of a future construction, can beperceived.

It is the rupture between of Papal power and theHuman power.


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THE FOURTEENTH CENTURYThe big changes

There were four important events which causedfundamental changes in society.

The demographic, the socio-economic changes,

the explosion of plastic arts and literature alsothe crisis of values

It is not a sudden change but it is obvious thatthe collective consciousness began to doubtabout the pillars of the old order.

The new order will be accompanied by newstructures: political, legal, economic and social.


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It is a great transformation that will lead to aprofound change in collective behavior andsocial organization.

The first are the demographic changes withdrastic reduction of the population.

The population declined dramatically. The BlackDeath reduced the population by 33%.

After the hunger and plague people begin toquestion the established order and the need forchange to ensure survival.


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The population also decreased by the ruinousand continous wars.

The second is the abandonment of the

countryside. The increase of population in the urban areas

helped the resurgence in trade among cities.

The trade also led to the interchange ofknowledge and new ideas of worldview. The third change: during this century there was

a real explosion of art and literature.


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THE FOURTEENTH CENTURYNew anthropology

This new cultural creativity brings a new worldview.

Boccaccio, Giotto, Petrach and Dante are thebest examples.

Finally it is a singular point in time characterizedby the search for a renewed anthropology.

The individual becomes the centre of the world. It will create a new political and social

conception based on his new thought .


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THE FOURTEENTH CENTURYCrisis of values

This anthropology is based on a new worldviewin which God is not the center of the universe.

The center of the world is human behavior.

The individual feels part of the world but with thedetermination of his will.

This was manifested in the domain of property

and the demands of their own freedom. Is the concept of Dominium : the individual

freedom and the guarantee of freedom.


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THE FOURTEENTH CENTURYCrisis of values

It is a circular concept: The property is theexpression of freedom and the freedom is theguarantee of property.

The property is inherent in human beings. It is apart of their original essence.

It was a renewal of the collective consciousness,a new vision of men in society.

The legal renewal will be a reflection of this newvision.

God ceases to be the primary social referenceand start being the man


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THE RISE OF THE NATION-STATE

The defining characteristic of modernity is avision of society as a collective of humanindividuals.

The freedom is recognized and respected. The individual dimension affects politics,

economics and culture throughout Europe

The new political structure will want to break theunion with the Church of Rome. This is the embryos of the modern western

state.


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The state as the new organization of individuals,released from divine influences.

We are at the beginning of the modern state

configuration. The law arises from the power of man and not of

divine power.

This is a confrontation that still endures today. The Church has consistently resisted losing their

influence and power.


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The material demonstration of the increase of thepower of the monarchs was the growth of theirdominions and the concentration of territories.

The recently acquired territories were usually

governed in accordance with their originating normsand instruments.

This solution that preserved the differences betweenthe territories was established within the context of alegal-political culture that was common to WesternEurope.

Territorial growth constituted, in part, the basis of thewealth that monarchs required to sustain theirgrowing power.


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Medieval scholarship was elaborated for themost part by theologians and jurists both civillaw specialists and canonists. It was mainly

concerned with the origin of power and its limits. Medieval theoretical constructions of power

remained highly present in the Modern Age. However, they were subject to evolution and

came to coexist with other theories pertaining tonew schools of thought (humanism andrationalism).


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Through those constructions of medieval origin,the power of the prince ( iurisdictio ) followed apath that had been initiated in the Late Middle

Ages. Gradually, a greater and more active power

would be sought in relation to other institutionsthat also held power.

As for the origin of the princes power, it wasconsidered to be the result of Gods will, as wasthe origin of the political community over which it

was exercised.


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Regarding the exercise of power, the theoreticaldiscourse that was enclosed within the medieval

jurisdictional model continued to serve to explain

what was occurring in practice, until the end ofthe Old Order.

The prince began to exercise his power to makelaws (sovereign power) more and more actively,while submitting himself to less and lessrestrictions and increasingly seeking legitimacyin his will (absolute sovereignty) a will that

tended to the general good.


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THE KINGDOM OF FRANCE Legal and political laboratory of modernity

One of the best exponents of the modern state isthe kingdom of France.

The pioneer experiences, manufactured in

France, will be extended throughout continentalEurope.

The political experiences started opposing thePapal power

The sovereign power appears as maximumexponent of individualism which begins toprevail .


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THE KINGDOM OF FRANCE Legal and political laboratory of modernity

This power begins to worry about placing socialareas of law among its priorities.

The monarch was awarded with the same

prerogatives as the Roman emperors. A distrust of the common law is produced and he

is reconsidered the Corpus Iuris.

Customs are collected and grouped in writingsby Charles VII in so-called Ordinances Montils-les-Tours writing in 1454.


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THE KINGDOM OF FRANCERoman Legal Tradition

Formally the constitutional basis of thecustoms remained untouched.

It is the consolidation of customary law and

Roman legal tradition. It is a break with the theocratic power and the

assertion of individuality as a centre for legalaction.

This French conception of royal power, law andthe separation of the Church will spread mainlythrough continental Europe.


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THE KINGDOM OF ENGLAND The origin of the Common Law

The Norman conquest is an event which istraditionally identified as the moment whichtransformed the political and legal landscape of

english society. The insularity of the english historical context,

regard to the continental Europe, is notable. The common law includes the common rights to

all free men of the country The most important field is the procedural.


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The existence of an effective proceduralguarantees the facts of a case that will be theirforce in law.

There were necessary legal experts with thetecnical expertise to craft the writs themselves.

Along with a strong power of the king appearsthe defense of customary law.

It is a legal system based rigorously onprecedent and legal case.


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A new class of lawyers, with sufficient technicalexpertise, began to form.

They were not students of the prestigious

universities. They are exclusively professional innature.(practice exclusively).

The legal class was increasingly able to removethe more unpleasantly authoritarianism.

The implementation of the new law will takeshape to the predominance of the common lawand the progressive loss of royal power.


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THE COMMON LAWAutonomy of law

The power of the judiciary becomes separatedfrom the person of the king

Three courts of the common law became

separate from the kings government. It begins the so-called rule of law which means

autonomy of law and the primacy of politics,subordination of the state to the law.

Common law means law produced largely by jurists, men trained in the school of their ownprofession.


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THE COMMON LAWPrecedent and case

The normative acts will be marginal until thenineteenth century

The history of the common law runs from the

Norman Conquest to the present day. It is a practical law made by practitioners and

estranged from the great cultural continentalmovements

It is the root of the English nations identity andis often inseparable from that identity. It is themost characteristic symbol of England.


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AN IDEOLOGICAL BREAK WITH THE PAST

The Humanism

In the fifteenth and sixteenth centuries, newtheories are developed.

Great developments of thoughts that influence a

decisive way in the legal field, are produced. The first was the dominant humanism in the

man-society-nature relationship.

The defining characteristic of humanism is anoptimistic evaluation of the capacities of thesubject.


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AN IDEOLOGICAL BREAK WITH THE PASTThe Humanism

Humanism is a clear self-sufficiency of thehuman beings.

There was a confidence in the liberation from

the constraints of medieval submission. The Classical civilization was rediscovered. The readings of Greek and Roman tradition are

recovered. The Roman law is the base used for the newlegal setting and as security for the new socialconception.


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AN IDEOLOGICAL BREAK WITH THE PASTThe Reformation

Humanism is the base of religious protest thesixteenth century: the Reformation.

Their main objectives of this movement are:

- To liberate the faithful to live prisoner ofsacred structures.

- To give an individual interpretation of religion.

- To eliminate the influences of Church ofRome.

A total transformation of community about

religious beliefs of the Middle Age is produced.


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AN IDEOLOGICAL BREAK WITH THE PASTThe Reformation

The Corpus Iuris Canonici was rejected as anexample of the power of the Church.

It is the best legal instrument for the

perpetuation of their juridical structures. The rejection of papal power increased the

power of governments that controlled even thechurches in their countries.

A large number of european monarchs supportthis new ideas to limit the Papal power in theircountries.


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AN IDEOLOGICAL BREAK WITH THE PASTProto-capitalism

Three principal events are the prelude ofcapitalism:-The increase of wealth from trade with America

-The opening of new land trade routes.-The new conception of property and theguarantee of individual freedom.

The individual wont consider the trade as sin(this is the medieval conception). They will contemplate the trade as a part of their

personal development.


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LEGAL HUMANISMPrimary move the study of law

The legal humanism was the primary move inthe study of law across all of Europe during thefifteenth and sixteenth centuries.

The humanism represents a new way of lookingat the relationship between the subject and theworld.

It is a revolution in anthropology. The lawshould serve to regulate human relationships.

The law is no longer the expression of God onearth.


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LEGAL HUMANISMPrimary move the study of law

The Church should not be the one whodetermines the rules

The message of legal humanism can be

reduced to a polemical attack on the perceivedmethodological deficiencies of medievalglossators and commentators.

Roman law must be returned in its historicaldimension, ensure its historicization, theiradaptation to new cultural realities.

It is the recovery of the Roman legal tradition


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LEGAL HUMANISMAmbitious project

The emblem of the legal humanism is novi homines .

For a new man is necessary a new law. The new

law was found in the roman past. It is the recuperation of the history of Roman

law. It is the current of historicization of law.

Historicization meant seeing Roman law as anexpression of an era. It is a legal concept that wants to have a global

view of the world around the law.


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LEGAL HUMANISMAmbitious project

It was an ambitious project that demanded theincorporation of the study of law in other fields ofknowledge: religion, philosophy, linguistics,

literature, archeology, politics. They want to build a law as a Total knowledge. This new methodology was a radical change of

the glossators and commentators. They performed all aspects of legal study in the

Modern Age.


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LEGAL HUMANISMHistoricist Rationalism

This contribution was fundamental for thestructural reform of the Roman law.

Humanists wished to establish the authentic

historical features of Roman law experience. The first might be called the second rationalist

and historicist.

Roman law was seen by these scholars asratio

scripta, they wrote manifestations of purerationality.

The Roman Law is the rediscovery of the new

rationality, the re-establishment of logic theories.


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LEGAL HUMANISMHistoricist Rationalism

The perception of Roman law as a historicallygenerated phenomenon demanded that scholarscontextualized Roman Jurist`s texts.

Their techniques are within a global historicalvision of Roman civilization and the Roman law.

The method used is:

- They use the structures of Roman law but theyhad the differentiation of past and present.- And the identification of the present as aspecific epoch.


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NATURAL LAWSuperior and universal reality

In the seventeenth and eighteenth centuriesarises at the European Continent a newmovement: The doctrine of natural law.

It is an internal dialectic between positivehistorical forms of law and the highest forms oflaw, inherents of human beings.

These structures of law is not produce by thepolitical organs.

These forms exist in a superior and universalreality: the nature.


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NATURAL LAWSuperior and universal reality

The recourse of natural law is not exclusive ofthis modern period.

Greco-Roman culture, medieval culture and our

contemporary culture have participed in a similardialectic.

We can, in fact, we identify a common andunifying all the qualities of this law in the naturallaw.

Natural law tends to be liberating andemancipating humanity.


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NATURAL LAWThe natural reason

Principles and rules as opposed to contingentand arbitrary decisions made by those in power.

Natural reason is a divine gift God has inscribed

in indelible characters in the things of creation. Free from artificial historicism try to get the

original natural state of human beings. The humanist anthropocentrism becomes

individualism. There have been several precedents in history.


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NATURAL LAWPrecedents

Tomas Aquinas :The universe is seen asordered for mankind and their by of divine rulesand principles.

Renaissance : A primal state in which eachindividual subject was absolutely free to governhis own actions.

The humanisms anthropocentrism . The mostbasic natural law is the instinct to safeguard theinvividual self: the self preservation.

Senventeenth century : The individual is not

bound by an social or collectives ties.


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NATURAL LAWNew sphere

Their emphasis on the pure state of mankindserves to distihguish a new sphere of the law.

The liberties of the human subject cannot be

constrained by the arbitrary interventions ofpower.

Power must be limited by respect for the rightsinnate to human nature.

The monarchs can not legislate against thesenatural rights.

They reinforce the idea that private property is a

natural right that rests on the human essence.


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TOPIC 1.Old Order and legal pluralism the culture of european Common Law.pdf