Reid on the Jurisprudence of the Forced Share in the Ancient World

Charles J. Reid, Jr., University of St. Thomas (Minnesota), School of Law, is publishing The Jurisprudence of the Forced Share in the Ancient World: From Cicero to Justinian? in Donations: Strategies and Relations in the Latin West/Nordic Countries From the Late Roman Period Until Today (Routledge: Ole-Albert Ronning, Helle Moller Sighe and Helle Vogt, eds., 2016.

This paper is concerned with the origins of the European doctrine of the forced share, according to which parents must set aside at least a portion of their estate for their children. I begin this paper in Late Republican Rome with the adoption by the praetors of the cause of action for setting aside inofficious wills (the querela inofficiosi testamenti) and the enforcement of the Lex Falcidia, the statute establishing the forced share at one-quarter of the estate. I then consider the emergence of the vocabulary used to justify this mandatory estate practice, focusing in particular on the richly-textured noun pietas. I examine the social background of this practice, looking in particular at ancient concepts of marriage and family. I review Pliny the Younger's criticism of testators who neglected the interests of family members. And I close with the great legal reforms of the law of wills by the Emperors Theodosius II and Justinian.

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The Development of Western Law After Justinian

M. Stuart Madden has published Paths of Western Law after Justinian in volume 22 of the Widener Law Journal (2013). Here is the abstract.

This article relates the story of three principal paths of law in Western Europe from the periods preceding the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through and including the several centuries thereafter. The period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that occupied and ruled the former Roman territories, and the recitation of such law in the form of new law codes promulgated by three of the major Gothic groupings: the Lombards, the Burgundians, and the Salian Franks.

In the main, the Germanic rulers were attentive to the need for laws that would suit not only German customary law as had been followed for many centuries, but also the Roman law to which their Roman constituencies, now under Germanic rule, had adhered. Importantly, even such Roman law as would be applied was only a bowdlerized version of Justinian's contributions, as the Digests and other interpretative parts of the comprehensive Corpus Juris Civilis were somehow lost, only to be recovered some centuries later. Thus, for the first several centuries of Germanic rule, the only remnant of written Roman law available was the blunt-edged summarization contained in the Code of Justinian.

Germanic law was revolutionized by its new application to the governance of stable agricultural communities. The Gothic codes also advanced continental law in many ways that today can be seen as building blocks of emerging western law. Perhaps most significantly, the three law codes studied here demonstrate a preference for resolution of disputes by means of composition (compensation), and included monetary incentives therefore. By such means, the Goths were largely successful in turning their culture away from violent retributive justice towards systems of composition for injury.

Further to this end were the adoptions of wergeld as an appropriate compensation for a homicide, and also the widespread use of codified tables of composition to be associated with particularized lesser wrongs. These changes in Germanic law gave an increased likelihood of even-handed administration of justice, and provided also a monetized incentive for the family of a victim to forego mayhem in resolving disputes. As to the incidence of violent justice, many ancient Germanic practices, such as blood feud or trial by boiling water, were tamed or eliminated in the development of new agricultural societies. The Gothic codes also adopted remarkably modern distinctions between intentional and accidental harm, as well as negligence standards that assigned uncannily familiar significance to concepts of duty and proximate cause.

In sum, the law codes of the Lombards, the Burgundians, and the Salian Franks provided a civilizing legal bridge between the fall of the Western Empire and the more westernized law codes that would follow in the later Middle Ages.

The text of the article is not available for download from SSRN. 

Comparative Latin American Law

José Calvo González, University of Malaga, has published "Justianiano en Latinoamérica. Una crónica sobre Técnica legislativa en Derecho comparado", in Cuadernos Electrónicos de Filosofía del Derecho [CEFD] (Universitat de València), n.24 (2011), pp. 22-36. Here is the abstract.

The text reviews the initiatives and development policy from the legislative power in Argentina and Nicaragua have forged in recent collections of their respective legal systems. Such compilations are the Argentine Legal Digest and Nicaraguan Legal Digest and have responded to principles early clearance, inventory, harmonization, normative consolidation and unification of legislation. The author is interested in the achievements of his legislative program of technical development, as well the extent of such approaches in legal and political terms of contribution to legal security and strengthening the rule of law.

Download/read the text (in Spanish) at the link.

Justinian's Influence

Mariateresa Cellurale, Universidad Externado de Colombia, has published Romani Y Gothi En Italia. La Comunión De Derecho En La República Unida De Justiniano (Romani and Gothi in Italy: The Community of Law in Justinian’s United Republic) in Revista de Derecho Privado, no. 21 (2011). Here is the abstract.

The pragmatica sanctio pro petitione Vigilii of 554 did not extend Justinian’s codes to Italy, but rather reaffirmed more vigorously the obligation to apply such codes which had entered into force since the very moment of their previous transmission sub edictali programmate. The Ostrogoth kings acted as magistrates of the Empire and guardians of Roman law, which was applied as ius commune for Goths and Romans, while at the same time the “national” Goth law remained in force, in accordance to the federative principle that was the basis for the building and expansion of the imperium populi Romani.

Download the article from SSRN at the link.