#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.

 

#AALL2016 Recap: Roman Law, Roman Order, and Restatements

By: Jennifer Allison

Although the title of this program promised content about Roman Law, this program actually was a bit more focused on digitization of library materials, especially materials and collections that are unique and important to researchers.  For both presenters, preserving materials is only one of several goals of library digitization projects.  Both had found that, perhaps, a more important goal is fostering and optimizing the connection between people and materials.

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Marylin Raisch, a long-time member of the FCIL-SIS, served as moderator and employed a question-and-answer format for Professor Kearley’s discussion, which was both highly effective and quite enjoyable.

Marylin’s knowledge of many topics, including Roman law and U.S. legal history, is quite extensive, and she probably could have offered an informative and interesting program on this topic all on her own.  However, she really allowed Professor Kearley’s knowledge, expertise, and passion for the subject to shine through.

Beginning around 1920, Wyoming Supreme Court Justice Fred Blume, an expert in Roman Law, began work on his English-language annotated translation of the Codex of Justinian.  Transcripts representing various stages and versions of this translation are in Justice Blume’s papers, which are held by the University of Wyoming Law Library. Professor Kearney oversaw and edited the digitization and publication of this manuscript collection, both editions of which are hosted on the University of Wyoming Law Library’s website.

Justice Blume’s personal history, as described by Professor Kearley, provided some fascinating background on his translation projects.  Justice Blume, who immigrated to the United States at age 12, learned Latin in high school and ended up graduating Phi Beta Kappa with a BS in philosophy.  While he did not have formal legal training, he read law in a law office, eventually becoming a lawyer, judge, and politician in Wyoming.

Throughout his life he had a deep interest in Roman legal materials, and decided to translate ancient Roman legal codes after he tried to order English translations of them from book publishers and was told there were none available.

Justice Blume was, as Professor Kearney explained, not alone in the American legal community when it came to his interest in Roman law.  During the early 19th century, many U.S. legal scholars studied Roman legal materials as a part of a larger movement toward exploring the codification of U.S. law.  Although that movement had receded by the end of the civil war, there was a renewed interest in using a Roman or civil law taxonomy as a means of classifying the law in the early 20th century, especially as it related to the American Law Institute’s project on legal restatements.

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As Professor Kearney pointed out, the early 20th century saw a “Jacksonian” anti-elitist movement similar to that which is taking place today.  To that end, Justice Blume took care to not discuss Roman law on the bench when he served as a justice on the Wyoming Supreme Court.  However, as Professor Kearney mentioned, among lawyers of a certain sensibility during that time, the language of Latin and Roman law served as an “old-school tie they waved at each other.”

Professor Kearney concluded by discussing the decision he made to include versions of Justice Blume’s work in manuscript form, which includes marginalia and other notes that make it hard to read, in the digital archive.  The advantage of including this as well is to create a real connection between the work and the researcher.

This conclusion created a nice tie-in to Angela T. Spinazzè’s presentation, in which she provided a more general discussion of establishing and managing digitization and digital archives projects.    Ms. Spinazzè focuses on three categories of questions: who, what, and how.

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  • First, in response to “who,” she considers who the intended audience is, which focuses the work and allows for coalescing around a shared conclusion. This also helps illuminate biases and assumptions.
  • Next, she thinks about the question of “what.” This means considering what the digitization project is intended to accomplish, and what the consequences would be of not digitizing the materials.
  • Finally, the “how” question focuses really on the materials themselves: how should what you are digitizing be presented to target audiences, and, perhaps unexpectedly, how will the digitization project advance the purpose of the organization? Can it, for example, foster greater collaboration across more institutional departments?  Is a natural outcome of the work the identification of more shared activities across the organization?

Ms. Spinazzè then provided two examples of digitization projects, the Oriental Institute  at the University of Chicago, and the HEIR (Historic Environment Image Resource) at the University of Oxford.  Both of these projects provided unique and illuminating answers to the questions of who, what, and how that really illustrated the effectiveness of the methodology.

The Oxford project sounded particularly interesting.  It saved from destruction a collection of lantern slides and glass plate negatives that had been abandoned in an archive. As it turned out, in addition to saving the original materials, the digital library also provided a wiki-like forum in which researchers and scholars could tag the images (using a controlled vocabulary) and provide new content of the scenes as they had been re-photographed over time.

Overall, although the program was not exclusively about Roman law, it provided a thoughtful forum for contemplating the values of digital collections, and provided insight into how the audience could consider undertaking similar projects at their home libraries.

FCIL-SIS Jurisdictions Interest Groups To Meet On Sunday

FCIL-SIS invites all AALL conference attendees to join us for our Jurisdictions Interest Groups Joint Meeting this Sunday, from 12:30pm to 2:00pm, in the Hyatt-Water Tower Room.  The program will include substantive presentations from several of our interest groups, as well as 15 minutes at the end of the meeting for each group to discuss their plans for the coming year.

The agenda for the meeting is as follows:

SUNDAY July 17, 2016

12:30 PM – 2:00 PM

FCIL-SIS Jurisdictions IG Joint Meeting (Africa, Asia, Latin America, Europe, Indigenous Peoples, Customary & Religious Law, Roman Law) (Hyatt-Water Tower)

Meeting Topics:

  • Welcome and Intro (Susan Gualtier, Louisiana State University School of Law Library) – 5 minutes
  • European Law: Recent Developments in German Law Related to Asylum and Refugees: A Brief Overview for Law Librarians (Jennifer Alison, Harvard Law School Library) – 20 minutes
  • Latin America: Cuban Legal Research Guide (Julienne Grant, Loyola University Chicago Law Library, et al.) – 10 minutes
  • Africa: Updates of the Digitization Case Law Project from South Western Nigeria (Yemisi Dina, Osgood Hall Law School Library) – 20 minutes
  • Indigenous Peoples: Indigenous Peoples and DNA Testing: Friend or Foe? (Steven Perkins, Greenberg Traurig, LLP) – 20 minutes
  • Individual Interest Groups business meetings – 15 minutes

Everyone is welcome to attend the presentations and to check out our interest groups, so please spread the word to anyone interested in these areas of foreign law.  FCIL-SIS looks forward to seeing you there!

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Roman Law – Translation, Images, Digital Projects and Visual Engagement!

By Marylin Raisch

At the upcoming AALL Annual Meeting, Professor Emeritus Timothy Kearley and digital projects consultant Angela Spinazzè will present a two-part program on creating exciting visual experiences in displaying special collections. First, Professor Kearley will describe the fascinating story of discovering manuscripts on Roman law and Latin translation of Justinian’s Code undertaken by Justice Fred Blume in the early 20th century. The orderliness of law concerned the ancient Romans and American codifiers, and an early taxonomy of law emerged. Then Angela Spinazzè, who has worked at the Art Institute of Chicago, will show beautiful visuals from her past projects for institutions in Chicago and Oxford that exemplify the best approach to creating functional and engaging virtual research experiences like the University of Wyoming’s unique online realization of Blume’s translation.

For those attending the conference, the location is the Hyatt Regency Hotel, Hyatt-Columbus EF at 8:30 a.m. on Tuesday, July 19th.

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AALL 2015 Recap: “As If Uttered by Our Own Inspired Mouth”: Researching the Corpus Juris Civilis

By Alyson Drake

Roman Law Program - croppedThe Legal History & Rare Book Special Interest Section and the FCIL-SIS Roman Law Interest Group had a joint meeting on July 21st to hear a fantastic talk on researching the Corpus Juris Civilis (CJC) by Fred Dingledy, Senior Reference Librarian at William and Mary Law.

Fred began by giving a history of the CJC, starting with Emperor Justinian I appointing the Codex commission in 528. He continued by providing a description of and the timeline for the development of each of the four components of the CJC:
1) the Institutes: the textbook for first year law students, and which also had binding legal effect;
2) the Digest: the compilation of writings of jurists from the late Roman Republic to the early third century AD;
3) the Codex: the compilation of excerpts from imperial constitutiones; and
4) the Novels: posthumous compilations of Justinian I’s constitutiones.
Fred also noted the organizational problems of the CJC, which can make it difficult to research.

Fred then explained about the medieval revival of CJC, and the subsequent translations of each of the four components of the CJC. He discussed the pros and cons of the various translations, and provided attendees with an annotated bibliography noting how to find those translations. Sources for various translations of each of the CJC’s components are available at online sources like Hein Online or for free at the Internet Archive. Want to read the whole CJC in the original Latin? Check out the edition by Krueger et al., which is considered to be the most authoritative version.

Finally, Fred talked about the relevance of the CJC through the Anglo-American English tradition, as the CJC was also very influential on many continental European legal codes; scholars such as Francis Bacon, John Adams, and William & Mary’s own George Wythe discussed it or cited it in their works. Fred also noted that it was cited as recently as 1997 in a U.S. Supreme Court case, Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 284 (1997).

Many thanks to Fred for a very interesting talk, filled with fun anecdotes.

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