The Formation of the Western
Legal Tradition
Eugene V. Afonasin, D. Phil., Novosibirsk State University
With the publication of Harold J. Berman very valuable and recently
translated into Russian book Law and Revolution, we have realized
as probably never before the extraordinary revolutionary nature of the
legal and institutional reforms that took place in Europe in the 12th
and 13th centuries. Among the consequences of this revolutional
shift in legal thought one can mention the following: emergence of a universal
system of law (since the recovery of the Roman civil law precipitated the
construction of a new law system, built ‘in conformity to reason and natural
law’, that transcended the boundaries of community, ethnic groups and religion);
development of new system of civil law, including such branches of legal
science as urban, merchant, royal, manorial laws, that thereafter became
permanent constituents of Western legal system; creation of a completely
new realm of legal and social actors, corporation (universities, cities,
communities, nation states etc.).
The course is designed as a part of a course of Roman Law, mandatory
for second-year students of the Department of Law. Next academic year an
expanded variant of the course will also be offered to Philosophy and Law
undergraduate and graduate students of Novosibirsk State University and
Novosibirsk Institute of Economics and Management.
Prerequisites: Roman Law, a basic course of History of Philosophy, Latin
Course content
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Introduction. Background of the Western legal tradition. The Folklaw.
Roman Law.
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The Origin of the Western Legal Tradition in the Papal Revolution.
Church and Empire. The Dictates of the Pope. The rise of Modern State.
The rise of Modern Legal Systems. Social-Psychological Causes and Consequences
of the Papal Revolution.
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The Origin of Western Legal Science in the European Universities.
The Law school in Bologna, its curriculum and teaching method. The application
of the scholastic methods of analysis, synthesis and dialectics to Legal
Science. Law as a prototype of Western science.
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Theological Sources of the Western Legal Tradition. Scholasticism,
Greek Philosophy and Roman Law. The New theology: St. Anselm’s Doctrine
of Atonement and its legal implications. The Christian Sacraments and their
legal implications (Last Judgment and Purgatory. The Sacrament of Penance.
The Sacrament of Eucharist).
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Canon Law – I. Canon Law and Roman Law. Constitutional foundations
of the Canon Law System. Corporation Law as the Constitutional Law of the
Church.
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Canon Law – II. The systematic character of Canon Law. The Canon
Law on Marriage, Inheritance, Property, Contracts. The Procedure.
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The formation of Secular Legal tradition. The emergence of new theories
of Secular Government and Secular Law. John of Salisbury, the founder of
Western Political science. Theories of Roman and Canon lawyers.
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Feudal Law. Feudal custom in the West prior to the eleventh century.
The System of Feudal law.
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Manorial Law. Main elements of Manorial Law: reciprocity of rights
of lords and peasants; participatory adjudication; integration and growth.
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Mercantile Law. The new system of commercial law. The rise of capitalism.
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Urban Law. Some notes on the origin and rise of the cities and towns
of Western Europe. Guilds and Guild Law. The main elements of Urban law.
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Royal Law. Royal laws of Sicily, England, Normandy, France, Germany,
Spain, Flanders, Hungary, Denmark, Russia.
Literature
The selection of recommended literature is certainly
not complete. These texts are chosen exclusively on the basis of their
availability in the library of Novosibirsk State University. A Russian
translation is assumed to be used whenever it is available.
Copies of the books marked with (*) are kindly presented
to NSU by CRC, the CEU.
Mandatory reading
Harold J. Berman. Law and Revolution. The Formation of the Western Legal
Tradition. Harvard University Press, Cambridge, Mass., 1983. – (*)
D.M. Dozhdev. Roman Law. Moscow, Infra-Norma, 1996 (in Russian).
V.S. Nersesyants. The Philosophy of Law. Moscow, Infra-Norma, 1998,
pp. 438-448 (In Russian).
Recommended reading
Justinian. The Digest of Roman Law (Russian translation, Moscow, Zertsalo,
1997).
Gai, Institutiones, lib. I-IV (Latin text with facing Russian Translation,
Moscow, Jurist, 1997).
Iulii Paulli Sententiarum ad filium libri V. Domitii Ulpiani Fragmenta
(Latin text with facing Russian Translation, Moscow, Zertsalo, 1998).
Eric Fügel. The Elefánty. The Hungarian Nobleman and His
Kindred. CEU Press, Budapest, 1998 (Chapter II: Tripartitum and
reality, pp.20-68) – (*)
Rosamond McKitterick. The Carolingians and the Written World. Cambridge
University Press, 1989 (Chapter 2: Law and the written Word, pp. 23-76)
– (*)
Fernand Braudel. Civilisation matérielle, économie et
capitalisme. Tome 3: Le temps du mond (Russian Translation, Moscow, Progress,1992)