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Feast of Saint John of Capistrano, Patron of Jurists

October 23, 2020November 26, 2020 Yves Casertano

The 23^rd of October is the feast of Saint John of Capistrano. He is perhaps best known as a Franciscan preacher and miracle worker, the “soldier saint” who defended Hungary against the Turks, and the namesake of a city in California. It is less well known that St. John of Capistrano is a patron saint of jurists (along with the more familiar patrons: St. Thomas More, St. Raymond of Penyafort, and St. Yves of Kermartin).

St. John was born in the Abruzzi in 1385, the son of a noble family from France that had settled in the Kingdom of Naples under the Angevin dynasty. As a young man, he studied law at Perugia and was noted for his brilliance. He was appointed governor of Perugia at the age of 27. However, while imprisoned during a regional conflict, John had a conversion experience and entered the Franciscans at the age of 31. Continue reading “Feast of Saint John of Capistrano, Patron of Jurists” →

Sir John Fortescue and the ius commune

October 7, 2020October 30, 2020 Pat Smith

Sir John Fortescue (1394–1479), who has been called by Ernst Kantorowicz “England’s greatest jurist of the Lancastrian period,” called England a dominium politicum et regale. A kingdom ruled politically and regally. This definition became subsequently very influential, not least because it contains a limitation on both the monarch and Parliament. One cannot rule without the other. Fortescue purported to derive his analysis from St. Thomas Aquinas and Giles of Rome. This has been the subject of considerable controversy, not least because it has not been clear over the last five hundred years or so where in Aquinas Fortescue found the notion of the dominium politicum et regale. Nevertheless, it is important to observe that Fortescue took great pains to claim Aquinas as an antecedent. This is one more example of the classical legal tradition—the ius commune—finding its way into English legal theory.

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The Living Voice of the Law

September 16, 2020September 16, 2020 Adrian Vermeule

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?

September 15, 2020November 26, 2020 Yves Casertano

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.

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Introductory Texts in Natural Law, Roman Law, and Canon Law

August 18, 2020August 28, 2020 JAF

At the request of a reader, we at Ius & Iustitium have drawn up a list of introductory texts in natural law, Roman law, and canon law, as well as a few on legal history. Natural law and Roman are unfortunately no longer commonly taught, and certainly not required, as a part of American legal training. Canon law, despite its influence on the development of common law, is unlikely even to be touched upon. Despite their reputation as arcane and recondite subjects, these are in fact endlessly fruitful and, with even modest application, rewarding areas. It should go without saying that we believe their study is vital to the revival of a common good jurisprudence.

We have focused on texts that will serve as good introductions for the American-schooled lawyer (or law student) who has never studied these areas before. But although this list is designed for lawyers, most of these works may be read just as profitably by intelligent laymen. We have for the most part avoided primary sources in this list, preferring introductory texts here.

Natural Law

Thomas Aquinas, Treatise on Law ST I-II, q. 90-108. Although this list is not a bibliography of primary sources (that will be left for a separate post), and focuses on secondary texts, pride of place must be given to Aquinas’s Treatise on Law, and this for two reasons: First, the treatise is unusually clear and lucid, even for a thinker renowned for his lucidity. Hence, with a bit of work, it may be read as profitably by the determined beginner as by the seasoned expert. Second, the Treatise on Law is absolutely central to virtually all accounts of natural law. Any attempt to properly understand natural law must reckon with it sooner or later. It is best that it be done sooner to avoid falling into error.
Brian McCall, The Architecture of Law: Rebuilding Law in the Classical Tradition. One of the best expositions of the natural law to come out in recent years. In it, McCall shows the superiority of the classical natural law tradition over the legal positivism that is so in vogue today. As such, it has value for everyone interested in the natural law tradition, and is particularly suitable for lawyers trained in the common law tradition who have not previously had a systematic exposure to the natural law tradition.
Heinrich Rommen, Natural Law: A Study in Legal and Social History and Philosophy. An introductory study of the philosophical history of natural law theory from the ancients through the moderns. Rommen draws critical attention to the manner in which Enlightenment thinkers such as Hobbes and Locke distorted the classical tradition while also analyzing the rise of legal positivism and its negative consequences.
Javier Hervada, Critical Introduction to Natural Law. A canonist and legal philosopher by training, Hervada taught both disciplines, as well as natural law, at the University of Navarra. He is one of the great systematizers of the Thomistic doctrine of juridical realism against the upsurge of positivism in the second half of the 20th century. His Introducción crítica, written for jurists and available in English, develops the doctrine of natural law as a juridical system based on the concept of right as the object of justice, i.e., as ‘the what is owed to another.’
Javier Hervada, What Is Law? The Modern Response of Juridical Realism. This little book summarizes the basic tenets of a Thomistic, natural-law jurisprudence in a straightforward, dogmatic style. Written for first-year law students, it is an excellent introduction for people with little to no legal training.

Roman Law

Barry Nicholas, An Introduction to Roman Law. This is the standard English language introduction to Roman law. It offers a magisterial account of Roman private law, tracing its history from the twelve tables up through modern times.
Ernest Metzger, A Companion to Justinian’s Institutes. An excellent and lucid companion to Justinian’s Institutes—specifically designed to accompany the translation by Peter Birks and Grant McLeod. The Institutes are the well-spring of Roman law, and remain the best introduction to the subject.
John Henry Merryman, The Civil Law Tradition. Merryman famously quoted a nameless scholar as saying that if he were innocent, he would prefer trial at a civil law court; if guilty, at a common law court. This classic introduction to the civil law tradition explains why, in Merryman’s view and those of others, the disparity of legal procedure is of such crucial importance.
Buckland & McNair, Roman Law and Common Law: A Comparison in Outline [2nd edition]. First published in 1936, Buckland’s Roman Law and Common Law compares the sources and methods of these two great legal systems before outlining their view of the law of persons, the law of property, succession, obligations, delict and tort, and procedure. Now in an expanded and supplemented edition, Roman Law and Common Law provides a helpful comparative introduction.
Rafael Domingo, Roman Law, An Introduction. Domingo trained as a Romanist, a specialist in Roman law, under Álvaro d’Ors, one of the greatest jurists of the 20th century. He has also written on legal philosophy, international law, constitutional law, civil law, and others. His Introduction presents a brief overview of the sources, methods, and history of Roman law.

Canon Law

Javier Hervada, Introduction to the Study of Canon Law. Hervada developed a general theory of canon law, including in the areas of canonical constitutional law and the law of matrimony, based on his articulation of natural-law jurisprudence, that has been highly influential in certain sectors. This work prepares the reader for the study of canon law by introducing first the role of law in the life of the Church, followed by a review of a number of categories and concepts essential to all juridical science.
R. H. Helmholz, The Spirit of Classical Canon Law. Drawing on the fundamental sources of medieval canon law, R. H. Helmholz present a dozen legal vignettes that together capture “the spirit of classical canon law.” Chapter 13, for example, sketches a scenario of how the courts of church and state interacted procedurally in medieval England. Other chapters explain how oaths worked in canon law, and distill some of Helmholz’s groundbreaking research on the canonical origins of modern criminal procedure.

Legal History

Paolo Grossi, A History of European Law. Grossi is a former president of the Italian Constitutional Court and professor of the History of Medieval and Modern Law at the University of Florence, and one of the most renowned living legal historians. A History of European Law is a mature summation of his work in less than 200 pages that provides an excellent, high-level overview of the history of Western law since the Middle Ages.
R. H. Helmholz, The Ius Commune in England: Four Studies. The ius commune was the system of jurisprudence founded upon Roman law and canon law that was nothing more or less than the jurisprudence of Christendom. Helmholz’s book uses four examples—including the law of sanctuary and the question of civil jurisdiction over the clergy—to explore the influence of the ius commune on Anglo-American law. Such exploration is helpful to develop an understanding of the canonical and Roman influences on modern Anglo-American concepts.

Ius & Iustitium has streamlined its submission process

August 11, 2020November 9, 2020 admin

Until now, the submission process for Ius & Iustitium has involved contacting an editor, either here or at The Josias, or a previous contributor, with a pitch or a draft essay. We have received (and published) some really excellent submissions. Candidly, however, the process has been a little inefficient—both for authors and editors. To streamline things, Ius & Iustitium has implemented a contact form, the link to which may be found here, as well as in the upper right hand of the homepage. We welcome intelligent contributions from within the classical legal tradition. Editors will review all submissions through the contact form and respond as promptly as possible. We also welcome responses to published pieces, notes of appreciation, critiques, queries, and whatever else our readers might submit.

A word about style: Ius & Iustitium does not have a complicated house style. Acknowledging the range of sources our contributors draw upon, it would be impossible to cover each and every question. Additionally, there is no requirement that submissions be heavily footnoted or contain links to every source. However, authors should try to conform to a few general guidelines:

A brief note requires less support than a lengthy essay.
Ius & Iustitium has an audience of readers interested in questions of jurisprudence and politics—in many cases these readers will want to read your sources.
Ius & Iustitium does not publish briefs, motions, or law review articles: One need not write in a highly formal style, but excessive informality hampers your argument.
Personal attacks may be effective on Twitter, but Ius & Iustitium is not Twitter.
Selections in Latin (or any other foreign language) should also be translated.
Very lengthy contributions may be broken up into a series of posts: If you submit a lengthy contribution, it is helpful to indicate how best it might be divided.

The Editors

Murder, Parking Tickets, and the Natural Law

August 6, 2020November 9, 2020 admin

Ius et Iustitium is happy to present this post by Patrick Button. Mr. Button is an attorney in Orlando, Florida.

Usually when the natural law is brought up in mainstream discourse on law and morality, when it is brought up at all, it is in one of two contexts. First, the legitimacy of disobeying unjust laws, and second, debates over so-called morals legislation aimed against carnal vices. These are certainly areas where the relationship between natural law and positive law is of great importance, but the scope of that relationship is much broader. In truth, all just legislation is derived from the natural law, from the prohibition of murder to parking regulations. One might reasonably object that parking regulations are relatively arbitrary, and do not seem comparable to laws against specific and grave evils like murder. In fact there is a categorical distinction to be made, which St. Thomas explains in Question 95 of Part I-II of the Summa Theologiae.

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Two Versions of Textualism

August 3, 2020August 4, 2020 Adrian Vermeule

Vincent Clarke’s piece on textualism-as-postmodernism, while certainly full of interest, seems to me ultimately incomplete and in need of critical qualifications. The problem is that “textualism”—which Clarke never squarely defines—can be said in many ways, or at least two ways, of which Clarke discusses only one. The one Clarke discusses is indeed incompatible with the classical legal tradition. Another of those ways, however, is entirely compatible with the classical legal tradition; indeed it is Thomas Aquinas’ own view.

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The Deconstructionist Ghost in the Textualist Machine

July 31, 2020August 1, 2020 admin

Ius et Iustitium is happy to present this guest post by Vincent Clarke. Mr. Clarke is scholar of Lacanian psychoanalysis.

It is not often commented on, but judicial textualism bears many of the same hallmarks as philosophical postmodernism. When this is properly appreciated, many of the results of textualist legal reasoning can be better understood. Implicit in textualism are many of the same principles as postmodernism. Understood in this way, textualism operates as a sort of system of gears allowing postmodern culture to infiltrate the legal apparatus. That the founders of textualism may not have intended such a result is an historical irony, but does not change the ultimate result. Since postmodernism’s aim is ultimately to undermine the legal system, textualism thus becomes an instrument of subversion.

These questions have been brought into much sharper focus with the recent ruling in Bostock v. Clayton County, 140 S. Ct. 1731 (2020), where the Supreme Court expanded the protections offered in the Civil Rights Act of 1964 to include not just discrimination based on race, color, religion, sex or national origin, but also ‘gender identity’ and ‘sexual orientation.’

Continue reading “The Deconstructionist Ghost in the Textualist Machine” →

Ius et Iustitium is happy to present this guest post by Vincent Clarke. Mr. Clarke is scholar of Lacanian psychoanalysis.

Continue reading “The Deconstructionist Ghost in the Textualist Machine” →

Common-Good Constitutionalism: Lessons from the Irish Constitution

July 31, 2020September 8, 2021 admin

Ius & Iustitium is happy to present this guest post by Conor Casey. Mr. Casey is a Max Weber Fellow, European University Institute.

Fascination with American culture tends to manifest in similar ways in many countries: conspicuous consumption of Hollywood and Silicon Valley’s latest outputs, keen interest in the op-eds of its leading media outlets, and avid following of the pageantry and personalities of apex federal politics.

This fascination also finds expression in the close interest paid by foreign lawyers to the ebb and flow of long-running battles over the United States’ 231-year-old Constitution and its interpretation, an interest which often metastasizes into influence. In Ireland, for one, a very clear line can be drawn between the activism of the Warren-era Supreme Court and how it inspired leading judges of the Irish Supreme Court to consciously increase their engagement and experimentation with the 1937 Constitution. This fascination with all things American ensures renewed that debate among self-identified legal and political conservatives—about the best method to interpret the Constitution—will be intently followed by public lawyers beyond its borders.

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