Rafał Wojciechowski European Legal Culture

Rafał WojciechowskiEuropean Legal Culture

Aims of the lectures The lectures have as their aim to give a basic acquaintance with the origins and main features of the European Legal Culture. Those features include: • Division into public and private law • Basically secular character of the European Legal Culture • Underlining of the rights of a person • Ideal of equality under law • Balance between the parties of an obligation and of the parties before a court

Origins of the European Legal Culture Origins of the European Legal Culture are older than the geographical notion of Europe. They lay in Egypt and in the Middle East. It is just like with the alphabet and other many inventions. Once something is discovered, it begin to live on its own.

Fundamental division of law The lectures will be divided in two parts: • Public law • Private law This division was introduced by ancient Roman law and was popularised in connection with the reception of that body of law. Roman jurist Ulpianus from 3rd century AD said that: Public law is conceived to benefit the community and private law has to benefit the single person.

Public & Private Law The division into public and private law is present in the European Legal Culture from ancient times. It was challenged in a few moments of history: • in medieval times by feudalism, when who was the owner of a of land exercised also states power; • and in 20th century by the doctrine of so called socialist states. They preferred a doctrine of unitary, undivided state power. After disbanding the Warsaw Pact in early 1990’ the division into public and private law returned and now is unquestionable in so called former Eastern block.

Two models of approaching public law There are two possibilities present in the history of European Legal Culture: a social order organized from above, where power comes from the top down; a social order organized bottom up, where power comes from a self-governing community of people. All social orders are somewhere in-between those two models. In antiquity example of power top down was Egypt and bottom up were some of very many Greek poleis. Today most centralised is government in North Korea and most democratic is Switzerland with very high level of self-governig of the people active in many referendums.

Egypt Around 3100 BC the pharaoh Menes united Lower and Upper Egypt and began the process of constructing a unitary state. The status of the Egyptian ruled evolved: the king was first regarded as a god, then the son of a god, and then as an intermediary between the gods and the people. The monarch was a despot, holding legislative, executive, judicial and military authority all at once. Submission to this authority was considered fulfilling the will of the gods, and rebellion was punished by the most severe temporal penalties as well as condemnation in the afterlife.

Egypt 2 The will of the ruler was carried out by state administration. It was headed by the Vizier, the pharaoh’s deputy. The chancellorand chief treasurerwere under his authority. Local administration was based on a division into nomes, ruled by nomarchs. Their function was taken from local rules of previous times. They concentrated administrative, judicial and fiscal authority, and oversaw local economic management. Nomarchs oversaw lower-ranking bureaucrats, who primarily managed public works. Public administration workers were paid in kind.

Mesopotamia Kingsruled the states in the land between the rivers. In the third millenium BC they were generally considered incarnations of the main gods. In the second millenium they were only seen as the earthly representatives of the gods. The kings were primarily aided by civil servants known as nubands, who were responsible for managing the royal court, day-to-day affairs of state and for exercising power over the military.

Mesopotamia 2 A centralized administration in Mesopotamia came about during the Babilon era of the 18th century BC. Hammurabi divided the state into provinces with governors (issaku) at their head, then into districts with satraps (pahatu). The smallest unit was the commune, headed by the warden (rabianu). Local civil servants joined administrative, police and judicial functions. The king directly appointed civil servants on all levels.

The Jewish state In the Jewish state the king was never regarded as a godly being, but rather only as anointed. The king oversaw the executive power. Lawmaking power belonged to the assembly, which limited the monarch’s despotism. Central administration rested in the hands of clan leaders.

The Jewish state 2 The Jewish state was divided into 12 districts, a reference to the tradition of the 12 Israeli tribes. The head of a district was known as the judge. Every district was required one month out of the year to deliver supplies to the palace needed for maintaining the royal court. After the death of Salomon, around 930 BC the Jewish state disintegrated into the Kingdom of Judah (two tribes in Jerusalem) and the Kingdom fo Israel (10 tribes occupying Samaria).

Greece Around 1200 BC, Greece was occupied by the Dorians. They led to the fall of the Mycenaean culture. This new situation did not lead to a unified Greek state. However, small state-like bodies developed. They were called poleis (Greek singular: polis). Polis consisted of both a city and its surrounding area. Usually the territory of a polis amounted to several hundred km2 and anywhere from a few thousand to tens of thousands of residents. Athens (2,500 km2) and Sparta (8,400 km2) were exceptions.

Athens At the beginning a king was the head of the state. His power was quickly restricted. As early as archaic times the kings were elected, first for 10 years, then for only one year. Royalty in its early form disappeared from Athens in the mid-7th century BC. One of the archons then received the title of king (archont basileus) in order to carry out religious functions. Only aristocrats were eligible to assume this prestigious function.

Athens 2 The most important civil servants in Athens were archons. They were instituted in order to limit the power of the king. The first one appinted was the archon polemarch to lead the army, then the archon eponymous responsible for internal state affairs. They were initially appointed for life, then for a period of 10 years, and from 683 BC for one year. Around the mid-7th century, six new civil servants were appointed, the thesmothete. They were considered archons. There were a total of 9 archons, and their leader was the archon eponymous.

Athens 3 The Areopagus was the Athenian council of elders. It was composed of previous archons who had compelted their year of service. The Areopagus was led by the archon basileus. The Areopagus’s powers included adjudicating the most serious crimes, oversight of administration and the appointment of new archons. The development of Athenian democracy in the mid-5th century BC led to the Areopagus losing most of its administrative powers.

Athens 4 During the oligarchic governments in Athens, some administrative advisory powers exercised by the Areopagus were taken over by the Council (boule), composed of around 400 members selected by territorial units. During the Athenian democracy, the primary administrative authority was the Council of 500. Every full citizen 30 years of older could become a member. The Council’s term of office lasted for one year and it was possible to be selected for membership a maximum of two times.

Athens 5 The Council of 500 met every day except for holidays and during ill-omen days. It was divided into 10 tribeswith 50 members each. An Athenian year consisted of 10 months, so every division had to perform its function for one month. The months were selected randomly. Members of the the Council were referred to as prytans, and their term of office was called a prytanie. A presidentwas selected at random every day, who was in office for the entire with a portion of the prytanies. He was entrusted with keys to the treasury and the archive.

Athens 5 Many other civil servants were appointed, generally by random selection. It is estimated that in democratic Athens the number of state offices was around 800. Officeholders were entitiled to a salary and many privileges. They wore a wreath of myrtle when performing their office. In the 5th century BC, the old archons were replaced in offices by strategists. There were 10 strategists. They were selected by a vote (exception from random selection during Athenian democracy) during a general assembly. They led the army, which was why they were neither appointed by drawing lots nor limited to a term of office. Pericles held this office in the years 443-429 BC.

Sparta The Spartan state was ruled by two kings. Initially elected, over time they became hereditary. Their power was progressively limited. The most important civil servants were ephors. Beginning in the 5th century BC, rulers had to swear an oath by which they obliged themselves to respect the law. There were five ephors, and they most likely represented the five settlements that made up Sparta. From the 6th century BC they were elected by citizens for a one-year term. They were entrusted with administration, foreign policy and judicial authority. They had the right to convene the assembly (apella).

Sparta 2 Two ephors accompanied a king during military campaigns and observed his behaviour, but they did not have the right to issue orders. After returning, they filed a report in which they could bring charges against the king. The court was composed of the second king, the ephors and members of the council of elders. Punishment could relay on a fine or dethroning or banishment or even the death penalty.

Sparta 3 The council of elders in Sparta was called the Gerousia. According to tradition, it was first convened in the 8th century BC by the king Lycurgus, the legendary lawgiver of Sparta. It was composed of 2 kings and 28 gerons who were appointed for life by the assembly (apella). The Gerousia’s powers included ruling on the most important matters of state, judicial powers in the most important criminal matters, preparing draft resolutions for the assembly and rescinding resolutions of the assembly that were detrimental to the state’s interests.

The Roman Kingdom It is traditionally accepted that Rome was founded by Romulus in April of 753 BC. The beginnings of the Roman state (civitas) was the settlement of the Palatine Hill, whose first residents were the Latini. Around the 6th century BC they united neighbouring villiages, creating the Septimonium, i.e. The city on seven hills. According to tradition, Rome was first ruled by seven succesive kings, beginning with Romulus and lasting through Tarquinius Superbus, who was banished in 509 BC.

The Roman Kingdom 2 The first and the last kings were certainly elected. Some of the others may have been hereditary. The king was selected by the Curiate Assembly. The king exercised supreme executive, judicial, military and religious authority. Legislative authority was limited by the powers of the Curiate Assembly. Civil servants were appointed and dismissed by the king. The Senate was a council of elders with advisory powers. Initially there were 100 of them, and at the end of the Kingdom they numbered 300. In the event of an interregnum, the Senate appointed successive interreges until a new king was chosen.

The Roman republic The republic was founded in 509 BC. The aristocracy that was introduced was then later transformed over two centuries of battles between the plebeians and the patricians into oligarchy. The expansion of Rome to cover all of Italia began in the 5th century BC and lasted until the beginning of the Punician Wars in 264 BC, when Rome began its expansion into other areas of the Mediterranean Sea basin. At the end of the 2nd century BC, the Roman republic was engulfed by internal conflict that slowly turned into a civil war in the 1st century BC. This led to the transformation of the republic into an empire around the year 27 BC.

The Roman republic 2 The magistratus designated both the civil servant and the office itself. Magistrates were divided into higher (maiores) and lower (minores). Magistrates were selected at popular assemblies called comitia. Higher officers were consuls, praetors and censors. Lower officers were aediles, questors and others given specific tasks. All officers were entitled to potestas, the right to issue edicts and assess penalties for not adhering to them.

The Roman republic 3 Civil servants also wielded the imperium, the right to command army, exercise judicial power and to summon popular assemblies. All magistrates, with the exception of dictator and censor, shared these characteristics: • Elected by assembly • Collegiality (at least two people) • Fixed terms of office (usually one year) • Honorary position with no salary • Responsibility before the popular assembly • Civil and criminal liability

Roman republic 4 Consuls held military and administrative powers, as well as some legislative and judicial ones. With time, the latter two were taken over by praetors. Official documents were signed with the names of two consuls in Rome. In the 1st century BC, they were assigned the governance of a province and given the title of proconsul after their yearly term of office expired.

Roman republic 7 The office of censor was established in 443 BC. Two censors were selected by the assembly for a period of 5 years. Their primary function was to maintain a record of citizens and to estimate their fortunes (census) for the purposes of raising armies and assessing taxes. Censors also supervised morality in public and private life. Those considered to be undignified could be punished with so called „censorial remarks” (nota censoria). They reviewed the lists of senators (lustrum), and crossed off the names of the undignified. Censors also exercised oversight of the public purse and public procurment.

Roman republic 8 The dictatorship was an extraordinary office. The dictator was appointed by the consul based on a resolution of the senate. The first dictator was appointed in the 5th century BC. His term of office lasted 6 months. The last dictator in the classical republican sense was appointed in 202 BC. There was no appeal against the dictator’s judgements to the popular assembly, unlike in the case of judgements from other public servants. In the 1st century BC the office of the dictator took on a different nature and was the foundation of the power of such exceptional individuals as Sulla (82-79 BC) and Caesar (48-44BC).

Roman republic 9 Tribunes of the Plebs, first 2, later 5, and finally 10 were selected annually at a plebeian assembly or special peoples assembly. Their territorial jurisdiction covered only the City and a one-mile radius around it. They were the embodiment of the majesty of the Roman people, therefore they were untouchable and their homes constituted a place of asylum.

Roman Empire The Empire was founded by Octavian August, who won the civil war and brought peace. In 28 BC he took the title of "first citizen" (princeps civium), which is the source of the word „principate” to describe the political structure of the Empire in the years 27 BC – 284 AD. In the years 235-284, the Empire was engulfed by a long political crisis characterized by the presence of many usurpers. Order was restored in 284 by Dioclecian, who is known as the creator of the political order known as the "dominate"; the Emperor was from then on referred to as "master and lord" (dominus ac deus).

Roman Empire 2 During the principate the Emperor ’s power was based mainly on the regular recurring appointment of him to the office of consul or proconsul. This was the source of theimperium maiusgiving the princeps supreme military power, ovesight of senatorial provinces and the right to issue edicts. In addition, the Emperor received the powers of the plebeian tribune, and since the tribunes previously were the embodiment of the majesty of the entire Roman people as well as untouchable, it was thus held the majesty of the people passed to the ruler. Many Emperors also took the office or the powers of the censor, which allowed them to determine the composition of the senate.

Roman Empire 3 During the Empire the Senate had 600 members, taken from those who had held high public office and satisfied strict financial conditions. The Emperor was responsible for choosing its members. The Senate’s powers included partial legislative power as well as the power to rule in the most important administrative and tax cases. Also, the Senate rather than the old comitia was responsible for appointing office holders. At the end of the 2nd century AD, Emperor Septimius Severus permanently transferred the majority of the Senate’s powers to the Emperor’s officers.

Roman Empire 4 Some of the republican offices functioned during the period of the principate, through the 3rd century, but were replaced by the imperial officers. Imperial officers performed their duties: • On the basis of a nomination by the Emperor • Monocratically • Without a defined term of office • For a specified salary The highest imperial officers held the title of prefect, while lower officers were procurators.

Roman Empire 6 During the principate, the city of Rome and Italia were treated in an excessively privileged manner. The territories outside of Italia were divided into provinces, in the republican tradition. The Emperors introduced a system of provinces under the Senate, in which armies were not stationed, and imperial provinces of strategic significance. Power was exercised in the provinces by governors, who had authority over other officers. An exception was in the imperial provinces, where financial matters were handled by curators who answered directly to the Emperor.

Roman Empire 7 During the dominate, the legal position of Italia and other imperial lands was made uniform. Constantine the Great went further in making the imperial administration uniform during the 4th century. The state was divided into four prefectures (Italia, Gaul, the Balkans, the East). They were ruled by praetorian prefects. Prefectures were divided into dioceses. First there were 12, later 14. They were headed by vicars. Dioceses were divided into provinces, of which there first were 96, and later 120. They were administered by appointees known as president or rector (praeses, rector). Rome and Constantinople had their own prefects.

Roman Empire 8 The Roman state finally split into its Western (until AD 476) and Eastern (until AD 1453) portions. The last Emperor to use Latin on a broad scale in his legislation and administration was Justinian the Great (527-565). The Empire later took on a distinct Hellenic character.

Rafał Wojciechowski European Legal Culture