I have discussed elsewhere how St. Isidore of Seville’s Etymologies were hugely influential for later writers like Gratian and St. Thomas Aquinas. (The Etymologies were generally influential throughout the Middle Ages.) It is helpful, however, to see St. Isidore’s jurisprudence in action, especially when applied to a current problem. One of the preferred jurisprudential moves of liberalism is to reduce the order of the state to written law—written norms—and exclude from that order any unwritten law. St. Isidore (and, later, St. Thomas) demonstrate that such a move has no warrant in the classical legal tradition and, therefore, should be rejected outright. Indeed, the saints show clearly that the order of the state is far greater than whatever may be reduced to written law at any time.
Continue reading “The Unwritten Law and the Order of the State”Month: September 2020
The Living Voice of the Law
In the very first book of the Digest of the Emperor Justinian, the great jurist Papinian lists the sources of the ius civile, the civil law of Rome, as “statutes, plebiscites, decrees of the Senate, imperial decrees, or authoritative juristic statements”—and then immediately adds that “praetorian law is that which the praetors have introduced in aid or supplementation or correction of the ius civile.” Just as the ius civile is, in part, a determination or specification within reasoned boundaries of the more general principles of the natural law, so too the edicts of the praetors—high magistrates of Rome, just beneath the consuls—added specification to or adjusted the contours of the ius civile as necessary. Even more detailed specification could be added through the application of the edict to facts in particular cases by the courts. Non curat minima praetor became the maxim; the praetor does not attend to small details. The function of the praetor was to determine important questions of policy within the bounds of the ius civile, adjusting it to lived realities and changing circumstances. Each praetor’s edict was in force only for the praetor’s own term, but each successive officeholder tended to adapt the edict of his predecessor as a baseline, making adjustments at the margin. The result was a system in which, as the jurist Marcian put it, the edicts of the praetors were “the living voice of the ius civile.” Continue reading “The Living Voice of the Law”
The E.U.’s Class Action Directive: An Inspiration for Corporatist Class Action Reform?
The origins of the class action can be traced to the English chancery courts—perhaps even to King Edward II’s adjudication of a dispute concerning the rights of Channel Islanders in 1309. The class action as we know it today, however, emerged in the United States in the mid-20th century and has mutated far beyond anything that would have been recognizable to chancery courts of even a century ago. In recent decades, the U.S.-style class action has begun to spread not only to other common law jurisdictions but also to the civil law countries of Europe and elsewhere. Earlier this summer, the European Union published the text of a proposed directive on “representative actions for the protection of the collective interests of consumers” (the “Directive”). Consumer law is defined broadly to include “data protection, financial services, travel and tourism, energy, telecommunications, environment and health, as well as air and train passenger rights, in addition to general consumer law.” While the class action procedure envisioned by the E.U. directive is more limited in scope than Federal Rule of Civil Procedure 23 and state law analogues, the Directive (once it is formally approved and implemented) is expected to significantly expand the availability of the class action mechanism in Europe, particularly in cross-border litigation.