French Codification Flashcards
Show as the first king of France
Clovis (466-511), king of the franks -> his intention was to get help of the bishops and the pope
White kinds of roman law were enforced in the south of France
- leges (imperial constitutions, namely Codices Gregorianus, Hermogenianus and
Theodosianus) - ius (writings of Roman lawyers)
How was pre Justinian law enacted and distributed in France
by the (Breviarium Alaricianum) -> had all teh characteristics of a codification
Why was Alaric’s codification still applicable even after the death of king
Because Breviarium Alaricianum was based Ont he principle of personality, thus it remained applicable to roman citizens under Clovis and his successors
Who conquered all of Europe in the year 800
Charlemagne
Was imperium subdivided between the two emperors, Charlemagne (west) and Irene (east)
No, because Charlemagne argued that the imperium should be placed only in charlemages hands
What was the treaty of versus (843 AD)
In 843 ADThe Treaty ended the Carolingian Civil War by partitioning Charlemagne’s empire into Western, Middle, and Eastern sections - Lothair I received Middle Francia, Louis the German received East Francia, and Charles the Bald received West Francia. However after lothar died the middle empire was divided into three parts between his sons until it seized to exist
-> The title of Emperor went to the king in the east which became the Holy Roman Empire. When the middle empire seized to exist, there was continuous strife between France and Germany which became neighbouring countries.
What kind of laws were use in south of France vs north of France
- Northern France → droit coutumier (customary law)
- Southern France → droit ecrite (written law) – Roman law
Why did french kings favour customary law over roman law?
- Law of the eastern empire – Roman law was identified as imperial law
- The notion of nationalism (did not originate in the soil of France)
What was the result of french kings disliking roman law
in 1219 Roman law was prohibited to be taught at the University of Sorbonne through the Super Specula (papal decree by Pope Honorius III). However, in legal practice Roman law was used as it was seen as customary law. In cases in which rules were not to be found in customary law; Roman law was used as common law (→ it could be said then that everything was customary law)
Was was the ordinance of montilz les tours by Charles II in 1452
Because French kings favoured customary law they made an ordinance to put customary law in writing. The records of customs were to be sent to the king for homologation(put them into working and give a royal stamp).
But over time, people in different regions found it more practical to write down their own customs instead of sending them to the king. This led to many different written customary laws. The problem was that if things changed, these written rules might not work anymore, and new unwritten rules would take over.
So, even though they wrote down the customary laws, they needed to keep updating them. For example, the Coutume de Paris, a set of laws first written in 1510, was changed and improved in 1580 to fit with the new situations and needs.
What happened during he enlightenment era in France
18th century philosophers called for the unification/codification of the law
-Voltaire was strongly against legal fragmentation and in favour of codification.
VS
- Montesquieu believed that legal inequality reflected the diversity of the French
What was the coutume de Paris
It was the custom of the court, therefore if there were no local laws applicable to judges, they should turn to the custom of Paris and not roman law. However roman law ended up being looked up to more than the custom of Paris
What changed in the legal relationship between the emperors and the king
Before, people used to believe that ultimate power belonged to the universal empire which was ruled by the emperor but then t changed and people started to regard the supreme authority as belonging to the various kingdom rather than the empire. People then linked this to the relationship between the French King and the Emperor, suggesting that the French King considered himself like an Emperor within his own kingdom. This was trigged by the interpretation of the decree called Per Venerabilem, issued by Pope Innocent III.
What was the decree Per Venerabilem issued by Pope Innocent III
In this decree, the pope said he could make illegitimate children legitimate so they could inherit property.
-> A guy named William Count of Montpellier asked the pope to do this for his illegitimate children, but the pope said he couldn’t. Interestingly, the pope said that William could go to a higher authority—the King of France—for help. Unlike the King of France, who didn’t have a higher authority for worldly matters, William had someone above him, the King of France.
Translate Rex francorum
King of the francs
Translate Rex langobardum
King of the lombards
Translate Imperator romanorum
Emperor of the romans
What was meany by the king was princeps of his own country
-crime of lease majesty is not applicable to emperor but also king
-what pleases the ruler has the force of law -> ordinances have binding powers
-the ruler is not bound by laws, the ruler is above the law -> justification of absolute power
When was the reform of custom of Paris
1580
What was mos gallicus ( Jacques Cujas)
-french way of interpretation
-The practitioners of the mos gallicus didn’t look for the meaning a legal text might have for the current time, but the meaning it had in the past.
-study of Greek language
-one of the greatest scholars of teh french school was jacques cujas
What was the reaction of Italians to mos gullicus
The humanists did not appreciate the needs to their time
Why hindered the french kings’ pursuit of absolute power
The independent actions of the courts of law (Curia Regis)
Why were jurists in parliament prohibited to rely on roman law when customary law was bailable
Because there were jurists who were educated in canon law and roman law, who took office
What were the powers of the local parliaments, especially the eldest (parliament of Paris):
-highest courts in their districts, no legal uniformity
-Right to issuing regulatory decrees in the lame of the king -> arrets de reglement
-every parliament was sovereign:
* droit d’enregistrment → right to refuse to register an ordinance of the king
*droit de remontrance → right to withdraw ordinances
Why was there a power struggle between the king and the parliament
Parliaments were sovereign and parliaments came to represent an independent authority in the kingdom, that was independent from the king itself, which of course led to a power struggle between the King and the parliament.
What were the to different approaches to roman law
Mos Gallicus → French approach - pioneered by Jacques Cujas
- Humanist / historical approach to Roman law.
- The Renaissance led to a greater interest in texts from Greco-Roman
antiquity, not just Christian texts. - Had very little impact on the modern practice of law
v.s.
Mos Italicus → Italian approach - pioneered by Bartolus
- Judicial approach to Roman law
- Focused on using Roman law to find solutions to problems, therefore their
interpretation was much broader.
- Bartolus developed a field called ‘international private law’ - Had immense impact on the modern practice of law
Why as the unification of french law not possible before the French Revolution
-there were over 700 customs in France
-Voltaire: if you travel through France, you switch legal sources more often than you switch horses
-Montesquieu: customary law reflects the diversity of the people in France
What developments led to code civil?
-In 1788, Louis XVI faced bankruptcy and called a special session of the Estates General to address the financial crisis.
-To enact more tax legislation, the agreement of the estates (nobility, clergy, and citizenry) was required.
-The Estates General consisted of three groups: nobility, clergy, and citizenry.
-Each estate expressed its opinions in the “books of grievances” (Cahiers de doleance) and submitted them to the King before the session.
-The Cahiers de doleance provided insights into the wishes of the population that the King could consider.
-Notably, there was a growing desire among the population for legal certainty and uniformity of the law.
-The call for legal certainty and uniformity of the law from the Cahiers de doleance contributed to the eventual development of the Code Civil.
