The Historical Sources of Law
Chapter 3: Where Applicable Law?
The Historical Sources of Law
The word “source” in law designates the origins or entities that create the law. We distinguish between:
- Sources of Production: Law-creating bodies.
- Sources of Knowledge: Books, documents, and legal texts where these creations materialize.
Legal history is largely the history of legal texts and books that have survived from past generations. Some, like the Corpus Juris Civilis of Justinian (consisting of the Digest, the Code, and the Novels), hold constant reference value across successive historical periods.
The Law and History
Initially, the law of the victor and revenge prevailed, followed by the law of retaliation, then financial compensation. Later came the classicism of Rome, the Middle Ages, and the era of obscurantism.
The Historical Minds of Law
The term “source” refers to the bodies or entities that create law, closely connected to the power or control of public policy. In early times, mankind accepted magical rules—tied to divinity—through the pronouncements of priests and sorcerers. In classical societies, laws were made by the organs of power, attributed to the King, magistrates (consuls), or Senate (council of elders), while these were subject to higher standards (now the Constitution). We distinguish between sources of production and sources of knowledge (books and legal documents).
The Rights of Old
In the Code of Hammurabi, the Sun God makes the laws through Hammurabi. Egyptian pharaohs also claimed divine authority. There was no legal distinction between human behavior and moral and religious precepts. The judge, as priest and interpreter of the divine, decided without adhering to established rules. There was no logical legal regulation.
Roman Law
Considered a model legal system and thus classified as classical, Roman law developed over 13 centuries, from the founding of Rome to Justinian. Its continued relevance justifies its study today.
Stages:
The Roman civitas took the form of a city-state: a walled military and religious enclosure, a temple for worship and where imperium was exercised, first by the Rex in the Monarchy and then by consuls in the Republic. The Senate advised, and important decisions were submitted to popular assemblies or comitia. The rules were guarded by the college of pontiffs. Jurists replaced secular priests, leading to the publication of the Law of the Twelve Tables. The praetor directed proceedings and submitted them to a judge or arbitrator in primitive forms of judgment.
Concepts like possession, bondage, and mancipium (the power of the paterfamilias over women and slaves) were subject to the authority of the agnatic family (related through male lineage), distinct from the cognatic family (united by blood ties). Giving a certain amount generated a creditum (debt), creating an obligation to return it. Occupied lands were distributed among veteran soldiers. Distinctions were made between fraud, fault, and diligent failure. Marriage was regulated by the conventio in manum, the acquisition by the husband of manus (control) over the woman.
The Roman Empire and Classical Law:
The search for new legal postulates led to the ordering and systematization of decisions, rules, and legal institutions. This new order, imposed by Octavian Augustus, ushered in a long period of peace and laid the foundation for provincial organization. Roman citizenship (Civis Romanus) became a title of honor. The praetor Romanus, in his annual edict, announced new legal actions. The legal process was carried out in different parts: in iure, apud iudicem, and the central moment of litis contestatio, dominated by the will of the parties. The praetor tested and verified the facts. In possession, the praetor protected the rights of the possessor in good faith. Consensual contracts (sale, lease, partnership, mandate) were introduced, increasing the importance of the parties’ will over older verbal contracts. Regarding crimes, the interpretation of the Lex Aquilia introduced the concept of intentional tort and fault, as well as the lack of diligence. Imperial constitutions were called leges, and from Constantine onward, they had general application and were binding. Gaius’s Institutions, imitated by Justinian, were very important for modern civil codes.
Medieval Law
In the West, the most important work was the Lex Romana Visigothorum, or Breviary of Alaric, promulgated by Alaric II. It represented the cultivated law against the Germanic law. Medieval law had Roman, Germanic, and Canon Law (Christian) influences. During the Reconquista, fueros (charters) were granted to conquered territories, and local customs sometimes led to the return of force and violence. The rediscovery of the Digest or Pandects in Bologna marked a return to Roman sources, representing the tradition of the University of Bologna. The study of Roman law and its application to national laws was revived.
In Spain, three compilations were published: The Book of the Actual Laws or Ordinances of Castile (ordered by the Catholic Monarchs), the New Compilation of 1567 (under Philip II), and the Newest Compilation of 1805 (under Charles IV). In Catalonia, the Constitucions i altres drets de Catalunya were compiled.
Modern Law
commentators and commentators (MOS italicus), begins a humanist movement(MOS GALICUS). In the s. Renaissance XVI result of attempts to reconstruct the Roman law, freeing it from the compilers and glosaristas.S trends. XVII Natural Law School advocated a universal right for all people, considered as the supreme written reason (RATIO SCRIPTA). S. Century German school considers the right of a people as a product of his own spirit, and based on Roman principles. Legal doctrine is developed, based on the wording of the Codes civiles.En Castilla, published three collections: Book of the actual laws or ordinances of Castile (ordering lowers Reyes Montalvo Católicos.La new compilation, 1567 under Philip II. The newest recoplilacion, 1805 under Charles IV.En Catalunya, Constitucions i altres drets de Catalunya.
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