Category: Roman Law

Customary Law and Popular Sovereignty

Adrian Vermeule

Following are lightly edited remarks delivered at a panel on “Unwritten Law,” held at the annual meeting of the Association of American Law Schools on January 6, 2022. These informal remarks are of course not intended to be rigorous or comprehensive, merely suggestive. Many thanks to organizer Robert Leider and fellow panelists Jeremy Waldron, Steve Sachs and Ashraf Ahmed for their thoughts and contributions.

It’s difficult to know how to discuss the topic of unwritten law in twelve minutes. The topic is an incredibly heterogeneous one, full of analytic complications that require endless preliminary distinctions, such as the extremely pellucid and not at all confusing distinction, beloved of legal historians, between legal custom and customary law. So naturally I propose simply to heroically ignore all those conceptual preliminaries and tell you how I changed my mind on a fundamental substantive issue: the relationship between popular sovereignty and custom. 

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The Private Right of Action

Pat Smith

Recently Texas enacted the Heartbeat Bill, which contains a twist on the standard heartbeat law, which many states have adopted in recent years. It allows individuals to sue abortion providers who violate the law, entitling them to collect at least $10,000. (It does not allow individuals to sue women who obtain abortions, however.) The United States Supreme Court declined to enjoin the enforcement of the law on a complicated procedural basis, but it is certain that there will be more litigation over the Heartbeat Bill. In fact, President Joseph Biden and Attorney General Merrick Garland have, citing the sanctity of the 1973 United States Supreme Court decision Roe v. Wade, vowed to prevent Texas from enforcing the law. President Biden has even considered taking other, more direct action to circumvent the law.

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Justinian Goes Fox Hunting

Yves Casertano

Perhaps without realizing it, most United States-educated lawyers are familiar with Book II.1.13 of Justinian’s Institutes. Here is the relevant excerpt:

Does an animal become yours when it is wounded and ready to be caught? Some jurists thought it became yours at once and stayed yours till you gave up the chase, only then becoming available again to the next taker. Others thought that it became yours only when you caught it. We confirm that view. After all, many things can happen to stop you catching the animal.

This passage is referenced in Pierson v. Post, a New York case from 1805 that most American law students read in their first-year property law course. Pierson v. Post involved a dispute between two hunters over who was the rightful owner of a fox killed on a beach on Long Island: The hunter who first spotted and pursued the fox? Or the hunter who intercepted, captured, and killed the fox? Apart from its usefulness in introducing law students to the complexities of property rights, Pierson v. Post undoubtedly owes its place in the first-year law curriculum to its amusingly old-timey facts (a fox hunt in Long Island!) and the playfully flowery prose employed in the opinions, particularly the dissent (“[W]ho would keep a pack of hounds; or what gentleman, at the sound of the horn, and at peep of day, would mount his steed, and for hours together, ‘sub jove frigido,’ or a vertical sun, pursue the windings of this wily quadruped, if, just as night came on, and his stratagems and strength were nearly exhausted, a saucy intruder, who had not shared in the honors or labors of the chase, were permitted to come in at the death, and bear away in triumph the object of pursuit?”)

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Notes on the Ius Commune – Part I: The Hydra of Legal Positivism

Rafael de Arízaga

Marx and Engels famously wrote in The German Ideology that «hundreds of earlier writers» (earlier, that is, than Max Stirner) agreed that «right originated from force» — i.e., from violence.

Anyone surveying the last 350 years of the history of jurisprudence may be excused for agreeing with them. It has been a history of monstrous heavings and shakings, where the law has been taken up and wielded as a tool for all kinds of delirious and utopian schemes. The common thread has been the demolition of the political-juridical principles of the prior order, which have been torn down, gutted, and redefined one by one. The justification for this razing of our juridical bastions has generally been connected to a claim that those old structures were offensive to the «rights of man». A claim about rights — a claim of justice — is thus at the heart of Modernity. But it is a claim of a perverted, defaced justice. «If the essence of “modern” culture is voluntarism (which is the intimate secret of rationalism)», wrote Cornelio Fabro, «one should not be astonished if the truth is then identified with action and right with force … The crisis of the world is a crisis of rights, in that it is first and foremost a crisis of their foundation, that is, of principles».1

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Lecturas introductorias de Derecho Natural, Derecho Romano, Derecho Canónico e Historia del Derecho

Rafael de Arízaga

En Ius & Iustitium hemos preparado una lista de lecturas introductorias sobre Derecho Natural, Derecho Romano, Derecho Canónico e Historia del Derecho. En muchas facultades de Derecho —en el mundo hispánico y fuera de él— se ha ido desatendiendo poco a poco el estudio de estas materias, relegándolas a veces a asignaturas optativas o resumidas. En los Estados Unidos, lo más probable es que un alumno termine su formación jurídica sin haberse encontrado nunca con estas materias. Como dijera Álvaro d’Ors, las facultades de Derecho han pasado de formar “letrados” a graduar meros “gestores,” pues son estas materias fundamentales, enseñadas tradicionalmente en el primer curso de la carrera, la raíz de la formación de los letrados, de los juristas. La reputación que tienen de ser disciplinas arcanas y de poca utilidad solo se entiende desde la perspectiva del energético y superficial gestor.

Nos hemos enfocado aquí en obras secundarias de carácter propedéutico que puedan servir de entrada para el jurista (o estudiante de Derecho) que no ha estudiado estas materias a profundidad. No incluimos aquí una lista de fuentes primarias, que abordaremos en una entrada posterior. Aunque la lista está destinada a juristas, estas obras también pueden ser leídas con provecho por personas legas interesadas en la Jurisprudencia clásica.

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Et sic utor pro me

Pat Smith

In the ordinary gloss on a word in Gratian’s Decretum, D.10 c.1, one finds the phrase “Et sic utor pro me quo non utor contra me”—“And so I use for my sake what I do not use against myself.” Coming as it does in the context of Distinction 10, which is entirely about the relationship between imperial legislation and ecclesiastical law, the gloss seems to summarize the Church’s entirely pragmatic attitude toward civil law. Indeed, the pragmatism embodied by both D.10 c.1 and the gloss mentioned here seems almost modern, despite its great antiquity. Catholics today—especially Catholics considering primarily juridical questions, including the important question of the relationship between Church and state—may well find the Church’s historical pragmatism surprising. 

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The Significance of Roman Law for the Development of European Law

Wolfgang Waldstein1 Comment

by Wolfgang Waldstein[1]

The Roman jurists, quite matter-of-factly, recognized natural law to be an inherent normative order for mankind, recognizable through reason and, thus, applied it in concrete decisions. With this work, the Roman jurists developed a concrete knowledge regarding the practice of natural law, thereby making it a historic reality. Over time, the deviations from natural law, which existed in the old Roman law, were perceived more and more as being unjust. Through countless individual decisions, these were corrected by the Roman jurists, in order to be able to arrive at just decisions. This work by the Roman jurists was conducted over a time period of nearly 500 years, from the 2nd century BC to the 3rd century AD. As was mentioned in the introduction, the results of this work were published in the year 533 AD by Emperor Justinian as one of his codes of law, in a work known as the Digest. The rediscovery of this work in the Middle Ages and the study of it at the original academy of the artes in Bologna, resulted in this school’s becoming the very first university in Europe. This university then influenced the entire further development of legal culture in Europe. Upon this foundation, the “natural law codes ”, the General Prussian state law of 1794 (AL), the Napoleonic Code of 1804, and the 1811 Civil Code of Austria (ABGB) were created. Based on this, the ABGB, even today, can say in § 16: “Every person has innate rights, already intelligible through reason.”

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The tyrannical Lex Regia?

Pat Smith

Fr. Thomas Crean and Prof. Alan Fimister have recently published their “manual,” Integralism (“C&F”). While the debates over integralism to date have centered on the subordination of the temporal power to the spiritual power, Crean and Fimister have an altogether more ambitious goal: they hope to present a coherent vision of Catholic politics, jurisprudence, and political economy. It would, however, be a mistake to think that they present a descriptive case. They have an agenda. There are numerous examples of this fact, but one of the clearest is their treatment of the civil law tradition compared to the common law tradition. A quick inspection of one aspect of their treatment, which takes up only a couple of paragraphs in their chapter on law, reveals not only their agenda but the manner in which they pursue it. 

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