AALL 2017 Recap: Cuban Law and Legal Research: A Snapshot During the Deshielo

By Caitlin Hunter

PanelDuring this year’s AALL conference I enjoyed the opportunity to attend “Cuban Law and Legal Research,” a panel discussion by Jorge R. Piñon (Director, Latin America and Caribbean Energy Program, University of Texas at Austin), Julienne E. Grant (Reference Librarian/Foreign & International Research Specialist, Loyola University Chicago School of Law Library), Marisol Florén Romero (Assistant Director for Library Services & Foreign & International Law, Florida International University), and Teresa M. Miguel-Stearns (Law Librarian and Professor of Law, Yale Law School Lillian Goldman Library.) The three librarians explained the theoretical structure of Cuban law, which Piñon tempered with his own practical experiences on the ground promoting trade between Cuba and the U.S.

Government StructureCuba is a civil law country and, more importantly, a socialist legality, where law is an instrument for moving society to socialism and communism. The basic government structure is established by the Constitution of 1976 and includes four branches:

  • The National Assembly of People’s Power, a legislative body that issues laws (leyes) and agreements (acuerdos) and is nominally Cuba’s highest authority;
  • The People’s Supreme Court, the highest judicial body;
  • The Office of the Attorney General, responsible for enforcing the laws; and
  • The Council of Ministers, an executive body that issues decrees (decretos) and is roughly analogous to the U.S. cabinet.

Except for the Council of Ministers, each branch has both provincial and municipal lower levels. Someone bringing a case would file it in a People’s Municipal Court, appeal to a People’s Provincial Court, and finally appeal to the People’s Supreme Court. Correspondingly, in addition to the national Office of the Attorney General, there are also Municipal and Provincial Attorney Generals. The legislative branch has not only Provincial and Municipal Assemblies, but also People’s Councils consisting of delegates elected down to the neighborhood level.

However, Piñon observed, you can rip up the formal chart and throw it out the window. Real power is actually held by much smaller groups. Within the People’s Supreme Court, only the smaller Governing Council issues binding decisions, in the form of instructions (instrucciones), agreements (acuerdos), and opinions (dictámenes.) Both the National Assembly and Council of Ministers also have smaller councils that are responsible for decision-making when they are not in session. The Council of State consists of 31 delegates from the National Assembly, issues decree-laws (decretos-leyes), and handles international treaties (tratados internacionales). The Executive Committee of the Council of Ministers consists of an unfixed number of ministers and issues resolutions (resoluciones). These smaller bodies wield considerable power because the National Assembly meets only two weeks a year and receives its marching orders from the Council of State when it does meet. Raúl Castro is the President of both the Council of State and the Council of Ministers. Regardless of the organizational chart, Castro and the Cuban Communist Party hold the real power.

Sources of LawCuban laws are difficult to find due to a lack of publishers and the government’s low commitment to transparency. There is no Lexis, Westlaw, or CLII Cuba. Government websites are here today, gone tomorrow and not necessarily accurate or intuitive to use. Cuba’s Gaceta Oficial posts Cuban laws in rar format, an old school competitor to the zip file that requires special software to decompress. The Gaceta includes codified Cuban law, but the codes aren’t up-to-date and there are differences even between the HTML and PDF versions posted on the Gaceta’s website. The problem is not restricted to online access. The government’s Instituto Cubano del Libro reviews all books and only authorizes a handful of publishers (e.g. ONBC) to print short runs that quickly sell out. During a recent book-buying trip to Cuba, Miguel-Stearns struggled to find something as simple as the current commercial code and spent hours waiting outside a bookstore while the Uruguayan publishers serving as intermediaries haggled for the handful of books available. Nevertheless, resources on Cuban law are expanding. For years the Supreme Court’s website was routinely down and nearly impossible to access, but following a recent reworking, it is now (usually) up and filled with useful information about the court and its rulings.  Other useful websites are the government-sponsored Granma and EcuRed; the independent Translating Cuba and Havana Times; and Cuba Trade Magazine, which focuses on the growing trade between the U.S. and Cuba.

Piñon believes that promoting trade between the U.S. and Cuba is key to both countries’ interests. Castro is now in his mid-eighties and has failed to identify a sufficiently charismatic, popular successor. Additionally, Cuba is heavily dependent on subsidies from Venezuela, which will end as soon as Maduro’s government falls. The imminent power vacuum could leave Cuba vulnerable to drug cartels. However, if the U.S. helps Cuba build a stable economy now, Americans and Cubans alike can benefit from the buying power of Cuban consumers and the contributions of the well-educated and entrepreneurial Cuban workforce. The Cuban government understands that it cannot continue to support hundreds of thousands of government workers once the Venezuelan subsidies end and is actively pushing both foreign investment and small businesses, such as B&Bs. For their part, American corporations are eager to access Cuban workers and markets and don’t care about the property the Cuban government seized from them decades ago. (Piñon quipped that most American companies would happily settle with Cuba for a dollar–and if Cuba does not have a dollar, they will reach into their pockets and give it the dollar.) The current re-freezing of Cuban relations has nothing to do with Cuba and everything to do with domestic U.S. politics. American politicians support the embargo because they fear losing support for their own policies from colleagues such as Marco Rubio, who in turn fear losing the votes of their Cuban exile constituents. It is up to us to counter this pressure and lobby the politicians who represent us to oppose the embargo.

All of the speakers were passionate and knowledgeable about their subjects and I wished this had been a deep dive so I could have heard everything they had to share. Happily, however, the presenters have also extensively documented their work elsewhere, including on this blog. Grant’s detailed travelogue of the Latin American Law Interest Group’s trip to Cuba is a special highlight. The presenters also provided an extensive handout, documenting and expanding on their presentation. Finally, I’ll be keeping an eye out for the Latin American Law Interest Group’s full guide to Cuban law, forthcoming in the month’s issue of the International Journal of Legal Information.

Cuban Law and Legal Research: A Snapshot During the Deshielo (Congelado?) – Monday, July 17, 2017, 9:45 a.m., Austin Convention Center, Room 18AB

By Julienne Grant

IMG_9721 (003)“The history of the United States and Cuba encompass[es] revolution and conflict, struggle and sacrifice, retribution and now reconciliation. It is time now for us to leave the past behind. It is time for us to look forward to the future together.”

-President Barack Obama, March 22, 2016, Havana, Cuba

 

“Therefore, effective immediately, I am canceling the last administration’s completely one-sided deal with Cuba.” 

-President Donald J. Trump, June 16, 2017, Miami, Florida

 

“Again, the United States Government resorts to coercive methods of the past, adopting measures to intensify the blockade, in force since February 1962, which not only causes damage and deprivation to the Cuban people and constitutes an undeniable obstacle to the development of our economy, but also affects the sovereignty and interests of other countries, inciting international rejection.” (Julienne E. Grant, translation)

-Declaration of the Revolutionary Government, June 16, 2017, Havana, Cuba

 

When I drafted a proposal last fall for an AALL program on Cuba, I envisioned a continuation of the dramatic deshielo (thaw) of relations between the U.S. and Cuba. Specifically, I assumed there would be a progression of the rapprochement that former President Obama alluded to in his speech in Havana on March 22, 2016.  What I didn’t foresee while crafting the program were the most recent proclamations by President Trump and the Cuban government.  Trump’s June 16th announcement in Miami that backtracks some of the previous administration’s initiatives has halted the thaw a bit. As such, this program is perhaps more appropriately a snapshot during the deshielo congelado (frozen thaw). However U.S.-Cuba relations can now be characterized, though, Cuba is on the cusp of dramatic changes, and it’s a hot topic.

Please join Dr. Marisol Florén-Romero (Florida International University), Teresa Miguel-Stearns (Yale), and me (Loyola University Chicago) as we first explore this enigmatic jurisdiction from a law librarian’s perspective. Our program will include a brief overview of the somewhat unwieldly nomenclature of Cuban law, as well as a short assessment of English-language sources that can provide insight into Cuba’s legal landscape. In addition, Teresa will offer a quick summary of her experience purchasing legal materials in Havana last year.  Accompanying the program is a useful 26-page handout that will be available for download.

Our featured speaker, however, is Professor Jorge R. Piñon, whose talk is titled “Cuba Business Scenarios:  Challenges and Opportunities,” certainly a timely topic in what is an extremely fluid political and economic environment.   Professor Piñon is the Interim Director of The University of Texas at Austin, Center for International Energy & Environmental Policy, and the Director of its Latin America & Caribbean Energy Program.

Professor Piñon is also recognized as an expert on Cuba’s energy sector, as well as on the island’s future economic transitional challenges and opportunities.  He is an advisor and a member of the Cuba Task Force at The Brookings Institution and co-author of “Cuba’s Energy Future: Strategic Approaches to Cooperation,” Brookings Institution Press, 2010.

Hope to see you on Monday for what is sure to be a lively, engaging, and enlightening hour!

 

Organizing and Participating in the “Open Access to Legal Knowledge in Africa” Workshop in Uganda

By Heather Casey

uganda2This past December, I had the privilege of traveling to Kampala, Uganda and assisting with a workshop on Open Access to legal knowledge in Africa. It was for law librarians in Anglophone Africa. The workshop was organized through the International Federation of Library Associations (IFLA), in cooperation with the International Association of Law Libraries (IALL). It was sponsored by IFLA, IALL, and HeinOnline.

I was one of several organizers – with me were Mark Engsberg (Emory University), Joe Hinger (St. John’s University), Caroline Ilako (Markerere University), Sonia Poulin (Alberta Law Libraries), and Bård Tuseth (University of Oslo). Over the course of several months, we worked to bring together a group of African law librarians that came from the following countries: Uganda, Ghana, Kenya, Cote d’Ivoire, Nigeria, Zimbabwe, Tanzania, and South Africa.

Our goals for the workshop were to empower participants to utilize the potential of open access legal sources in legal research. The workshop offered a method to build a network of law librarians across Africa in order to share knowledge and assist each other in solving practical legal research questions. Participation provided an overview of open access legal sources worldwide, the practical skills required to benefit from them, and an opportunity to establish contact with colleagues from different countries.

uganda1One essential component of the workshop was for every participant to give a presentation. Most were 5 minutes long and organizers spoke from 15 minutes to 45 minutes on various topics with Q&A sessions afterward. Our reasons behind having every participant give a presentation were several; first, it encouraged each participant to plan for the workshop and guaranteed active participation. Second, each participant shared information on the legal research environment in their jurisdiction, which allowed for other participants to learn more about jurisdictions outside their own. It also assisted with networking, as each presentation allowed participants to better acquaint themselves with one another. Getting up in front of their peers gave each participant a chance to exercise skills in public speaking that they may not have otherwise used over the course of the two-day workshop.

We also had three breakout sessions where participants were gathered into small groups to foster discussion. Organizers joined in at each group table to act as facilitators for the small group discussions. After 45 minutes to an hour of discussion, the entire workshop group would come together and people from each group would relay their group’s findings.

As organizers, we wanted to ensure that participants would continue to contribute to a network for African Law Librarians. To that end, we established several online forums after the workshop for participants and organizers to engage in virtual and practical collaboration with international colleagues. The forums included:

So far the email chain and WhatsApp groups have been very vibrant. Participants continue to reach out to one another to discuss resources and let one another know what is happening in their jurisdictions. The website has been good for exchanging slides from the workshop and members have discussed what they would like to further do with the website.

We are excited to see this group continue in its efforts to further the goals of the workshop and look forward to further collaboration with members of the workshop. The experience was unforgettable and one I personally was truly honored and humbled to take part in. It was also very enjoyable to visit Uganda and learn more about the vibrant culture there. I look forward to visiting again.

What’s Up In Italy?: The Referendum & Beppe’s Words of Wisdom

By: Julienne Grant

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Flag of Italy

Let’s step away for a moment from the transition drama (particularly the wacky tweets) and focus on an important vote that’s taking place somewhere else in the world—in Italy.  And while we’re on the subject of Italy, I’d like to highlight an Italian journalist’s take on our presidential election, as I think Americans can learn something from it.

The Referendum

This Sunday (Dec. 4), Italians will vote on a far-reaching plan for constitutional reform. The Italian parliament approved the changes in April with an absolute majority, but not a two-thirds majority—thus sending the vote to a popular referendum (per article 138 of Italy’s constitution). There are excellent overviews of the complex proposal available online, so I won’t detail too much here. Specifically, I recommend the Global Legal Monitor’s Nov. 18th post, and the coverage available on the EUROPP blog. In short, though, the proposed platform puts Italy’s parliamentary system on the chopping block.  One element of the program, for example, would streamline the Italian Senate from 315 Senators to 100, with the Senators no longer being directly elected. The Senate would essentially become a consultative chamber, rather than an equal player in the country’s legislative process.

The push for reform has been guided by Italy’s 41-year-old suave Prime Minister, Matteo Renzi. Mr. Renzi is the Secretary of the centre-left Partito Democratico (PD), and he served as the mayor of Florence before becoming Italy’s top executive in Feb. 2014. In a “60 Minutes” interview with Charlie Rose this past Sunday (Nov. 27), Mr. Renzi argued:

This referendum is not a referendum to change democracy in Italy. [It] is a referendum to reduce bureaucracy in Italy. Italy is the worst country for bureaucracy around the world. And this is very important. If we have a system with a lot of politicians the consequence is 63 government change[s] in 70 years.”

EUROPP again does a good job of summarizing both sides of the issue, so I won’t belabor either here. Succinctly, Mr. Renzi’s camp believes the changes will create a more efficient process for law-making, resulting in government stability, and in turn, an economic boost that the country desperately needs. The Italian business community generally supports the platform, and outside of Italy, U.S. President Barack Obama has openly endorsed Mr. Renzi’s plan.

Opponents, though, claim that the reforms will make the legislating process chaotic and place too much power in Mr. Renzi’s hands. Several of Italy’s, shall we say, more colorful political parties have been quite vocal in their opposition—the xenophobic Lega Nord (LN), Silvio Berlusconi’s signature Forza Italia (FI), and the populist Movimento 5 Stelle (M5S), which was founded by comedian Beppe Grillo. By all accounts, the referendum has perhaps become more of a plebiscite on Mr. Renzi than on constitutional reform. Beppe Severgnini, a popular Italian journalist also interviewed on “60 Minutes,” explained what a “Yes” vote will mean as it directly pertains to Mr. Renzi:

“Well, if it’s a yes, “yes” vote, we have to be very careful. We have to find a way to, to anchor Matteo Renzi somewhere down to earth because he’s gonna float in Rome. You see, you look at the sky. This Matteo Renzi’s floating away. Because he’s gonna be over the moon.”

The Implications

Mr. Renzi has indicated that he will resign if the referendum fails, as the UK’s David Cameron did after the Brexit vote. Whether Italy’s Prime Minister will follow through with that pledge, however, is unknown. Predictions abound as to what will occur if there is a “No” vote victory.  The EUROPP blog includes several of these, but the mainstream media in the UK, Europe, and even the U.S. have also chimed in. Most of these “negative outcome” pieces are of the “doom and gloom” type—foreseeing a political crisis in Italy, which would consequently scare investors away from a number of Italian banks that are already on the brinks.  Such a banking crisis in Italy, some analysts contend, could rock European financial markets and spark another Eurozone crisis. (see, e.g., “Next Wild Card for Markets: Italy’s Constitutional Referendum,” Wall St. Journal, Nov. 18).

The Vote

Italian law bans the publishing of opinion polls during the final two weeks of political campaigns, so the most recent polls available are from Nov. 18th. Those polls showed the “No” vote ahead by a fairly wide margin, but a lot can happen in two weeks, and there are still undecided voters. Having been a student of the wild world of Italian politics for a number of years, and having listened to an Italian friend bash Mr. Renzi, my own sense is that the “No” vote will prevail. Pass or fail, however, the referendum is significant; if it’s “Yes,” about a third of Italy’s constitution will be drastically changed, and if it’s “No,” at least one of the predicted financial meltdown scenarios could play out.

Beppe’s Words of Wisdom

Just a final note as Italians approach their monumental vote, and many Americans are still coming to grips with the Nov. 8th vote here.  Ironically, it is perhaps an Italian who can best put the U.S. presidential election into perspective.  Journalist Beppe Severgnini, mentioned above, is about as astute as they come in terms of cross-cultural savvy, and his recent observations about our election are worth noting here. Mr. Severgnini’s piece, “What a Trump America Can Learn From a Berlusconi Italy” (New York Times, Nov. 15) serves concurrently as a warning, a sign of hope, and a scolding.  As a warning–that the similarities between Silvio Berlusconi and Donald Trump are eerily striking. As a sign of hope—that Italy survived Mr. Berlusconi.  And, as a scolding—“We [Italians] just hope that this [presidential] election, and what comes after, makes America less willing to lecture the rest of us on what does and does not constitute good government.” It is this last point, in particular, that I hope Americans will heed.

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Italian Senate

Antiquarian/Rare Books Vendors and Dealers: Foreign and International Law

By Lyonette Louis-Jacques

domesday-book-1804x972For those building special collections of rare law books, here is a list I compiled recently after a call for suggestions to the AALL FCIL-SIS (Foreign, Comparative, and International Law) and LHRB-SIS (Legal History & Rare Books) e-Communities, and the INT-LAW (International Law Librarians) listserv. Thanks especially to Mike Widener, Andreas Knobelsdorf, and Jonathan Pratter for suggesting names of antiquarian vendors/dealers/publishers, etc. of foreign, comparative, and international law rare books. Please send any other suggestions or updates to me at llou@uchicago.edu).

Here is the list:

Sometimes FCIL rare books are sold through auctions via Bonhams or Doyle.

Mega-catalogs or rare book search pages for identifying rare FCIL titles include AbeBooks.com, viaLibri, ZVAB (Zentrales Verzeichnis Antiquarischer Bücher), WorldCat, and KVK – Karlsruher Virtueller Katalog (you can limit your search to the Buchhandel = Book Trade section). You can use these sources to check if a law title is unique or owned by few law libraries.  You can check these sources or digital libraries or commercial databases directly to see if a rare law book you own has already been digitized (if you’re thinking of special digitization projects).

For tracking the literature related to FCIL history, it’s useful to regularly review the Bulletin of Medieval Canon Law which includes an annual bibliography of essays and books) and “Orientamenti Bibliografici”, a bibliography coordinated by Rosalba Sorice with contributions from Manlio Bellomo, etc. published  in the Rivista Internazionale di Diritto Comune.

You can enroll in Mike Widener’s course for training in law rare book collecting. It’s a Rare Book School class called Law Books: History & Connoisseurship. He teaches it every two years or so. A reading list is available. Mike’s most recent law rare books class was in June 2016 and covered Roman, canon & civil law in addition to Anglo-American law. Bill Schwesig reported on this year’s class in the summer 2016 issue of the CALL Bulletin. Susan Gualtier, Teresa Miguel-Stearns, Sarah Ryan, and Fang Wang reported on the summer 2014 class in the March 2015 issue of AALL Spectrum.

It might be also useful for FCIL rare book collection development to check the catalogs and new acquisitions lists of research center libraries such as the Library of the Max Planck Institute for European Legal History (which, BTW, has a great digital library!).

Some of the libraries that have strong collection of rare FCIL book include Yale (including the Library of the Stephan Kuttner Institute of Medieval Canon Law), Berkeley (Robbins Collection on Religious and Civil Law), Law Library of Congress (The Rare Book Collection), and the Peace Palace Library (Grotius Collection). Sharing knowledge with them, generalist rare book librarians, or EXLIBRIS-L subscribers, on FCIL rare book collecting would be important for others new to selecting materials in this area. What are some strong FCIL rare book collections or specialized vendors?

Skipped the London Eye, Headed for the UK Supreme Court

By: Amy Flick & Julienne Grant

After IALL in Oxford, some of us seized the opportunity to take a few extra days to explore London. London is full of tourists, and sometimes the lines can be daunting, particularly at sites like the London Eye.  Tourists were not pounding at the doors of the UK Supreme Court, however, which made for a very pleasant visit.  Several of us opted for guided tours and also explored the excellent exhibition in the basement.

The UK Supreme Court has only existed since October 2009 per the Constitutional Reform Act 2005. Final judicial authority for the UK was previously vested in the Appellate Committee of The House of Lords, its members serving as judges known as Law Lords.  When the UK Supreme Court opened for business, the 12 Law Lords became the first sitting UK Supreme Court Justices. According to the Court’s website, the Court was “established to achieve a complete separation between the United Kingdom’s senior Judges and the Upper House of Parliament, emphasizing the independence of the Law Lords and increasing the transparency between Parliament and the courts.”

The UK Supreme Court is housed in the former Middlesex Guildhall, which sits on Parliament Square, across from the Houses of Parliament and next to Westminster Abbey. Constructed in 1913, the building once served as a Crown Court and was refurbished to house the new UK Supreme Court.  There are three courtrooms in the building with the first being the largest and most traditional in appearance. The second courtroom is sleek and modern, and its glass back wall is etched with an Eleanor Roosevelt quotation. Court 3 is used by the Judicial Committee of The Privy Council (JCPC).

The 12 Justices sit on panels of five, seven, or nine, with five being the most common. Panels are assigned by the Court’s president, currently the Lord Neuberger of Abbotsbury.  The Court is the final court of appeal for civil cases from all of the UK, and criminal cases from England, Wales, and Northern Ireland. The Court hears around 100 cases a year with about a quarter being criminal, and the rest covering a broad range of topics. The 12 Justices also sit on the JCPC, although other Commonwealth judges may be invited to sit on those panels.  The JCPC docket runs about 50 to 60 cases per year.

Cases can take up to four years to wind through the UK lower courts, but can be expedited if they are time sensitive.  Cases are chosen for a hearing in the Supreme Court if they have an arguable point of law and/or a “general impact on society.” The Court operates from October through the end of July, spread over four terms.  Hearings average between one and five days in length.  One recent, and quite compelling case, involved a transgender individual. In that case, the plaintiff applied for her state retirement pension when she was 60, but was denied as she had not formally applied for a gender recognition certificate.  The Court had not yet decided the case when we were on site, but the judgment came down last week. The Court elected to defer the legal question to the Court of Justice of the European Union (CJEU). One assumes that the CJEU will be out of the picture completely once Brexit is implemented.

The Court’s Justices are selected in a process that is quite different from that in the U.S., which is highly politicized. To be eligible to serve on the Court, a candidate must have served at least 15 years as a “qualifying practitioner” or two years as a judge in the UK court system.  An independent panel of legal and non-legal experts vets and interviews candidates.  The Queen formally makes the appointment.  Mandatory retirement age is 75 for those Justices who were Law Lords, and 70 otherwise.  In the next couple of years, half of the Court will be retiring.  Currently, two Justices are Scottish, another is from Northern Ireland, and the Baroness Hale of Richmond is the only female Justice.  The current lack of diversity on the Court will seemingly be addressed with the forthcoming wave of retirements.

The Court’s elegant emblem includes the blue flax flower of Northern Ireland, England’s Tudor rose, Wales’ green leek leaves, and Scotland’s purple thistle. These symbols are intertwined with a Libra representing the scales of justice, and an Omega, which represents the Court as the final source of justice in the UK.  The Court’s colorful carpeting repeats the emblem and was designed by Sir Peter Blake, who also designed the Beatles’ Sgt. Pepper’s album cover.  The Court’s interior is functional, but also quite attractive; you can even rent out the place for a wedding, dinner, or other event. (Somehow it’s difficult to picture a wild wedding reception taking place here, but anything is possible.)

The Court employs eight Judicial Assistants (JAs)—one permanent, the others serve for one year.  The four Justices with the highest seniority have their own clerks, while the remaining eight share four JAs.  The Justices don’t wear traditional robes in the courtroom and sit on the same level as the parties’ legal teams.  The Court’s usher does wear a gown, and barristers have the option of wearing wigs and robes.  Barristers address the Justices as “Lord” and “Lady.”  Hearings are streamed live and remain on the Court’s web archive for a year.

The Court’s library is generally not open to the public, but we were allowed a visit, hosted very graciously by Head Librarian Paul Sandles (one of two librarians on staff).  The library spans two floors, and the walls have quotations (selected by the Justices) penned by a wide variety of authors ranging from Aristotle to Martin Luther King. The print collection is somewhat limited since most of the Law Lords’ book collection remained on site within the House of Lords. The library concentrates on basic texts on subjects covered in court, adding titles preemptively and as needed. There are some primary and secondary foreign materials. The library’s U.S. Reports set was donated by the U.S. Supreme Court after a visit by the U.S. Justices.

Although the Court tour does not offer the London Eye’s “view you’ll never forget,” it is nonetheless a worthwhile way to spend an afternoon.  In a jurisdiction that can lay claim to the Magna Carta (1215), it is fascinating to get a glimpse of a legal institution in its infancy.

 

#IALL2016 Recap: Precedent and Authority: the Continental Dimension

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By: Jim Hart

Professor Ibbetson began with the point that precedent has not always been a part of English law and has been more a part of Continental law than we think.  He explained that historically, in general, common law precedent focused on law as it was applied in court whereas civil law precedent focused on the principles and rules in the codes.

He began with England because here we’re on fairly familiar and firm ground. Before the nineteenth century there was no strict rule of bindingness and no structure by which courts were only bound by courts above them.  This is not surprising because it was only in the nineteenth century that we began to get enough regular, reliable reports and a clear hierarchy of courts to think of precedents binding on lower courts.

It was only in the seventeenth century that changes in the direction of the modern ways of thinking began to occur.   And it wouldn’t surprise anybody, especially after hearing Professor Baker’s lecture, that a central figure in this process was Sir Edmund Coke.  We need to address three closely related, but separate phenomena.  The first was the practice of following previous cases.  Although this was not new and it probably goes back as far as we think there was a common law system, it became more intense with high quality reports.  It’s probably hard for us to think of the common law without this since we expect judges to act consistently and English law had nothing like the books and rules of Roman law.

The second phenomenon was the development of the idea of authority. Professor Ibbetson paused a minute here before saying something more about it.  Naturally King had authority, sheriff had authority in his county, the bailiff in his bailiwick and so on.  From the late 15th century we begin to see that some texts were considered to have authority, which must mean that they contained rules that had to be followed, just as the instructions of King, sheriff or bailiff.  As the sixteenth century progressed we find it more normal to say that these texts were authority and being authority was something different from having authority. The only books that were authority, of course, were law books.  And increasingly there was a strong focus on decided cases that had been authorities.  I suspect that the development of the idea of authority at that time was related to the differences between Plowden and Dyer’s methods and those of the Year Books although Professor Ibettson did not say so.

And thirdly there was precedent.  Many lawyers had been familiar with precedent having prepared formal documents such as precedents of pleading.  In the early seventeenth century we find special status being given to judicial precedent, that is decided cases and, in particular, decided cases where the reasons had been recorded.  Just as we would say today that judicial rulings and decided cases as precedents were authorities.

This judicial authority developed from the theory of argument by dialectic, which would have been familiar to anyone from a medieval university.  At this time nearly any text could be authoritative.  But there were two categories of authority: necessary and probable.  The best example of a necessary authority was the Bible which was true by definition and any conclusion drawn from it was equally true as long as the argument was validly drawn from premise to conclusion.  Probable authorities were things that were not true in themselves, but might be true.  It was not what learned men said that constituted probable authority, but things like moralizing fables, popular sayings, and customary ways of doing things.  This is the world of the medieval university on the continent and in England.  In the early 16th century, perhaps first in Holland, a specifically legal dialectic began to appear about how to frame a forensic argument.  The argument from authority is the strongest in law (argumentum ab auctoritate est fortissimum in lege), wrote one commentator.  The authorities that formed the basis of the argument might be necessary or probable.  In the medieval university, the theory of authority was based on a tradition that went back to Cicero.  But dialectic and rhetoric were not miles apart.

There was another classical tradition.  This one was traced not back to Cicero, but to Quintillian. And here we find the Latin term, “praejudicia,” which we can translate as precedents.  We’re not sure what Quintillian meant by this term, but it might have meant things that had been adjudged before, the literal translation of praeiudicia.  In the early sixteenth century it was said that auctoritas and praeiudicia were interchangeable terms. We don’t know which of these ideas of legal dialectic were used in England, but we do know that some were.  Moreover as more common lawyers spent time at university, they would have come across Cicero and Quintillian and would be utterly familiar with the basics of dialectic and rhetoric.  We are sure that Coke was familiar with these precise terms when he was at university.  Coke used these two sources explicitly in his writing. Indeed he peppered his writings with quotations and near quotations on authority and precedent.  Coke was quite clear that these judicial precedents were only probable authority.  Although judicial precedent was only probable, it was authoritative in court.  All other things being equal, they should be followed.  But other things were not always equal. So from about 1700, England had a doctrine of precedent that was rooted in dialectical theory.  Notice that this process began about a hundred years before the period covered by Professor Baker and stretched to about fifty years later.

How different were things on the continent?  At first glance they weren’t very different in theory, but they differed in operation.  The writers on legal dialectic in Holland, Germany or elsewhere in Europe were thinking in terms of their own systems, not at all in terms of the unruly English common law.  So the argument from authority would have been utterly familiar.  To continental lawyers some authorities were necessary, in particular the writings of the Roman jurists.  It was laid down in Justinian’s code that they had the force of legislation.  The medieval jurists were not regarded as necessary authorities, but as probable ones and the same applied to all the modern writers.  The best way to influence a judge was to follow a long line of legal opinion.  But the dominant line of legal opinion might be held to be wrong, especially by an appellate court.  Previous cases were a problem.  Another Roman law text seemed to exclude their significance saying that judgments should be made on the basis of a lex rather than an exemplum.  But previous decisions could be distinguished.  What really mattered with previous decisions was that they came from a particular court that was known for its learning or issued its decisions under the name of the monarch or ruler.  It is tempting to conclude that the mass of citations from Roman law was little more than froth.  What really mattered was the jurisprudence of this court.  But we should resist that temptation.  We should say that the previous case showed the issue behind the mass of citation.  These were all probable authorities according to the writers on dialectic.  And the previous case merely showed what the correct path through all these authorities was.  Courts might look at previous decisions, but their decisions were made according to the true law.  Earlier decisions might help them to understand what law lay behind a complex plethora of authorities cited in a present case.  In England we can say that it was the printing of large numbers of reports that was really central in allowing the increase in the use of precedent in the early seventeenth century.

So do we get case reports in early modern Europe?  We certainly do and lots and lots and lots of them.  In Italy by 1600 there were thirty-two separate volumes of reports printed in very large folio volumes.  There was a real difference between these volumes and those in England.   The English reports included the arguments given in court sometimes together with the decision that had been reached, which allowed the successful arguments to be identified so that later readers could identify the reason for the decision and understand what the case was an authority for.  The continental model was different.  The reason for the decision was constructed by the person producing the volume.  In so far as they could be said to be authority, it was probable authority like all the other forms of legal writing that were being produced.

Although it’s anachronistic to make the comparison, the continental reports had the same authority as the textbooks used to elucidate the law whereas the English reports had far greater authority.  The legal systems of Europe of this time were similar and they were held together by the common Roman law.  Professor Ibbetson said that he didn’t think that it was an exaggeration to say that there was so vast an amount of legal literature on the continent in the sixteenth century that one could probably prove an argument and its opposite from it.  There was a crying need for something like the English doctrine of precedent to cut through all this mass.  A couple of Spaniards even suggested that all foreign law books should be burned.  And we do find something similar to the English doctrine, but, in one crucial respect, not identical to it.  We can begin tracing this in Naples in the 1490s; one of their statutes said that decisions of the Sacrum Concilium, the highest court, were given in the name of the prince.  Thus it was said that it was if the Sacrum Consilium’s judgements had been given by the prince himself, i.e. that they had legislative force.  This appeared in one of the most important collections of decisions.  But it did not apply to the most important court of the Roman Catholic Church, the Roman Rota, a court whose reasoning was worthy of enormous respect.  But its decisions were not given in the name of the pope so they didn’t count as legislation.  However, as the sixteenth century progressed all across Europe, decisions of courts were said to have the force of legislation.

One of the best discussions of this issue comes from early seventeenth century Portugal.  The core rule there was something like that of Naples: decisions of the Senate given in the presence of the King were treated as having legislative force since the king was presumed to have approved them.  But the king was not always present.  So further arguments were needed to bolster up the authority of court decisions.

One very important rule, backed up by a Roman law text, said that a rule of custom might displace a rule of Roman law itself since all law ultimately came from the people.  How could you identify such customs?  Decisions of the local court would suffice to do so provided of course that they had come from a court whose decisions were worthy of respect, effectively from a superior court.  Decisions of the Senate were always more or less acceptable.

European legal systems based on Roman law contained a great deal of probable authority, from many thousands of volumes, some of which were very thick.  But when we see citations to previous cases, they are overwhelmingly drowned out by the noise of commentators.  England had hardly any textbooks, but by the seventeenth century judicial precedents contained almost exclusively probable authority in what was a very small number of reports.  The continental doctrine of precedent, on the other hand, had come about differently.  For there the relevant case law in the judgment was necessary authority, which meant that it created absolutely firm binding rules.  The great advantage in the seventeenth century and today in the English doctrine was that it created a great deal of provisional bindingness.  But it was only the decisions of the House of Lords that produced any binding rules and they were relatively few in number.  On the continent Supreme Court decisions have stronger authority, but they lack the flexibility of the English doctrine.  Their very rigidity prevented them from developing into something like the English doctrine.  The continental doctrine lacked the ability to work over a very long time.

Professor Ibbetson followed with a gracious thank you and we with thundering applause.