World History
Byzantine Empire
Rule of Law: The Story of Human Rights in World History
2004 ORIAS Summer Teachers' Institute
July 26-30
(http://orias.berkeley.edu/summer2004/summer2004JustinianCode.htm )
What is the Justinian Code?
Based on "The Institutes"
Corupus Iurus Civilis or the Justinian Code, was the result of Emperor Justinian's desire that existing
Roman law be collected into a simple and clear system of laws, or "code." Tribonian, a legal minister
under Justinian, lead a group of scholars in a 14-month effort to codify existing Roman law. The result
was the first Justinian Code, completed in 529. This code was later expanded to include Justinian's own
laws, as well as two additional books on areas of the law. In 534, the Justinian Code, made up of the
Code, the Digest, and the Institutes, was completed.
Composition of the Justinian Code, 534 CE
Codex/ Code
Codification of existing Roman
laws
Digest/Pandects
*A guide for judges
*Summary of common
law
The Institutes
Introduction to law and the
Code
intended for law students
What types of law are in the Justinian Code?
1. Unwritten laws based on customs and usage
2. Types of written law :
Name
"Sounds Like "
Definition
leges (singular, lex)
legal
law
plebiscita
plebiscite
by vote of the people
senatusconsulta
senate
consult decree of ancient Roman
Senate
constitutiones of emperors
constitution
edict of the Emperor
(supreme power)
edicta of magistrates
edict
edict of magistrates
responsa of jurisprudents
response, jurist
commentary by legal expert
Areas of Law in the Justinian Code:
Public Law:
Law for government
Private Law:
Law for individuals
composed of Natural Law, Law of Nations, and Civil Law
Natural Law
Law of Nations
Civil Law
"The law of nature is that
law which nature teaches to
all animals. For this law
does not belong exclusively
to the human race, but
belongs to all animals,
whether of the earth, the air,
or the water. Hence comes
the union of the male and
female, which we term
matrimony; hence the
procreation and bringing up
of children. We see, indeed,
that all the other animals
besides men are considered
as having knowledge of this
law."
"[T]he law which natural
reason appoints for all
mankind obtains equally
among all nations,
because all nations make
use of it."
"The law which a people makes
for its own government belongs
exclusively to that state and is
called the civil law, as being the
law of the particular state."
How do Natural Law, Law of Nations, and Civil Law work together to create a legal system?
"Civil law is thus distinguished from the law of nations. Every community governed by laws and
customs uses partly its own law, partly laws common to all mankind. . . . The people of Rome, then, are
governed partly by their own laws, and partly by the laws which are common to all mankind."
"{N]ations have established certain laws, as occasion and the necessities of human life required. Wars
arose, and in their train followed captivity and then slavery, which is contrary to the law of nature; for by
that law all men are originally born free. Further, by the law of nations almost all contracts were at first
introduced, as, for instance, buying and selling, letting and hiring, partnership, deposits, loans returnable
in kind, and very many others."
"The laws of nature, which all nations observe alike, being established by a divine providence, remain
ever fixed and immutable. But the laws which every state has enacted, undergo frequent changes, either
by the tacit consent of the people, or by a new law being subsequently passed."
CODE OF JUSTINIAN
(http://www.fordham.edu/halsall/basis/535institutes.html )
Book II. Of Things.
I. Divisions of Things.
1. By the law of nature these things are common to mankind---the air, running water, the sea, and
consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore,
provided that he respects habitationes, monuments, and buildings which are not, like the sea,
subject only to the law of nations.
6. Among things belonging to a corporate body, not to individuals, are, for instance, buildings in
cities, theaters, race-courses, and other similar places belonging in common to a whole city.
7. Things sacred, religious, and holy belong to no one; for that which is subject to divine law is
not the property of any one.
Justinian
Adapted from The Institutes of Justinian, translated by J.B. Moyle. Fifth Edition, Clarendon
Press, Oxford, England, 1913
(http://www.humanistictexts.org/justinian.htm#_Toc483882751 )
14 Public Prosecutions
Public prosecutions are not commenced as actions are, nor indeed is there any resemblance between them
and the other remedies of which we have spoken; on the contrary, they differ greatly both in the mode in
which they are commenced, and in the rules by which they are conducted.
They are called public because as a general rule any citizen may come forward as prosecutor in
them. 1
Some are capital, others not. By capital prosecutions we mean those in which the accused may be
punished with the most extreme severity of the law, with interdiction from water and fire, with
deportation, or with hard labor in the mines: those which entail only infamy and pecuniary
penalties are public, but not capital. 2
The following statutes relate to public prosecutions. First, there is the Lex Iulia on treason, which
includes any design against the Emperor or State; the penalty under it is death, and even after
decease the guilty person’s name and memory are branded with infamy. 3
The Lex Cornelia on forgery, otherwise called the statute of wills, inflicts penalties on all who
shall write, seal, or read a forged will or other document, or shall substitute the same for the real
original, or who shall knowingly and feloniously make, engrave, or use a false seal. If the
criminal be a slave, the penalty fixed by the statute is death, as in the statute relating to assassins
and poisoners: if a free man, deportation. 7
The Lex Iulia on embezzlement punishes all who steal money or other property belonging to the
State, or devoted to the maintenance of religion. Judges who during their term of office embezzle
public money are punishable with death, as also are their aiders and abettors, and any who
receive such money knowing it to have been stolen. Other persons who violate the provisions of
this statute are liable to deportation. 9
Bill of Rights (http://www.law.cornell.edu/constitution/billofrights)
First Amendment [Religion, Speech, Press, Assembly, Petition (1791)] (see annotations)
Second Amendment [Right to Bear Arms (1791)] (see annotations)
Third Amendment [Quartering of Troops (1791)] (see annotations)
Fourth Amendment [Search and Seizure (1791)] (see annotations)
Fifth Amendment [Grand Jury, Double Jeopardy, Self-Incrimination, Due Process (1791)] (see
annotations)
Sixth Amendment [Criminal Prosecutions - Jury Trial, Right to Confront and to Counsel (1791)]
(see annotations)
Seventh Amendment [Common Law Suits - Jury Trial (1791)] (see annotations)
Eighth Amendment [Excess Bail or Fines, Cruel and Unusual Punishment (1791)] (see
annotations)
Ninth Amendment [Non-Enumerated Rights (1791)] (see annotations)
Tenth Amendment [Rights Reserved to States (1791)] (see annotations)
Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress of grievances.
Amendment II
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and
bear arms, shall not be infringed.
Amendment III
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time
of war, but in a manner to be prescribed by law.
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place to be searched, and the persons or
things to be seized.
Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in
actual service in time of war or public danger; nor shall any person be subject for the same offense to be
twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property
be taken for public use, without just compensation.
Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial
jury of the state and district wherein the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his
favor, and to have the assistance of counsel for his defense.
Amendment VII
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by
jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the
United States, than according to the rules of the common law.
Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments
inflicted.
Amendment IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others
retained by the people.
Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are
reserved to the states respectively, or to the people.