I. What is Law? A. Introduction: The cast of characters, institutions and forms.
Reading Notes Book I Titles I-II, Justinian, Institutes
Much like most first classes, the first class of Elements of Law is meant to provide an overview of the course, specific course objectives and frame the context of the discussion that will carry the class through to its end. We will spend a bit of time going over the long explanatory note in the syllabus, “Preface to Materials.” That is done because, as an unconventional course, first year law students will likely have difficulty figuring out where this course “fits” into what they think is a proper first year law education. My hope is to convince you that this course is both relevant and useful.
The central reading for this first day’s assignment is Justinian’s Institutes (J.B. Moyle trans. (Oxford, 1911) [Some emendations by CD]); available http://amesfoundation.law.harvard.edu/digital/CJCiv/JInst.pdf= with a focus on Book I, titles 1 (Of Justice and Law) and 2 (Of the Law of Nature, the Law of Nations, and the Civil Law). The purpose of this exercise is to begin to situate the core question raised by the course—“what is law?” The assumption is that entering law students, like many others, have assumptions about the meaning and scope of law, that are usually based on premises that have never been explored—for example, that law is what the legislature passes as a statute, or law is what a court applies, etc. because that is the way our political order is constructed, etc. This first session is meant to expose and unpack those assumptions and then to suggest a more rigorous way of thinking about the issues and ambiguities. The Institutes provides an excellent vehicle for introducing these concepts and the issues they raise precisely because the Institutes seek to raise and settle these questions quite definitively as a foundational basis for the “law” that is then elaborated.
The Institutes (short for Institutiones Justiniani or "Justinian's Institutes") forms a part of the Corpus Iuris Civilis, the great codification of all Roman law ordered by the Emperor Justinian in the 6th century. The rediscovery of the Corpus Iuris in late medieval Europe served to ignite a juristic revival that provided the foundation of what would ultimately produce the modern legal systems of Europe. The Institutes served as the law book for first year law students in the ancient world. Unlike modern student case books, the Institutes also carried the force of law. Its object was to provide law students with the simplest introduction to the study of Roman law by then almost a millennium in development. Today it may also provide U.S. law students with a similar frame of reference. It provides the basic answers to questions about the subject they will be studying for the next three years in ways that should be simple to understand and that may provide larger insights useful in their doctrinal classes.
The Institutes starts with an attempt to define “justice” rather than “law.” The reason is simple—the basic object of law ought to be to produce justice. But without an understanding of justice law becomes little more than a mechanical exercise. The definition of justice is simple yet subtle: “a set and constant purpose that gives everyone his due.” Notice what is emphasized: accessibility and predictability. These eventually became foundational notions of both rule of law and of the general principles of law of most civil law countries. In the United States it forms the basis of our constitutional notions of due process. It forms the essence of the framework for the federal Rules of Civil Procedure, as well as the foundation of U.S. Constitutional law. Notice as well what is left open ended: the substance of the meaning of justice. What may be a person’s due may be both malleable and contextual. It’s sources lie outside of justice. In essence, then, justice is principally concerned with matters of process applied to a definite set of substantive concerns centering on the fundamental obligations due persons, the precise nature of which may not, in fact, be derived from the concept of justice itself. In other words, just because one can set up a well arranged law system doesn’t tell you what sorts of law one will enforce.
Jurisprudence is then the study of the science of the just and unjust. Put differently, jurisprudence is the study of the application of principles of accessibility and predictability to the elaboration of the obligations owed to every person, the substance of which is derived from the study of “things divine and human.” (Bk I, Tit. I.1). While lawyers do not generally spend much time on the great issues of jurisprudence, they are constantly constrained by the limits to lawyer’s role that are derived from jurisprudential principles. If for no other reason, it behooves lawyers to have a passing understanding of the relationship of law to jurisprudence—that is the relationship between what law can be used for and its application in specific circumstances.
How does one approach the study of so massive a field? The Institutes suggest a methodology that continues to be influential for the study of law, and in some jurisdictions for the development of law codes. One starts from the simplest and most general principles and then expands from the most general to the most specific. (Book I, tit. I.2). Yet it is ironic to observe that even almost 2,000 years ago, there was a tremendous amount of concern about making the study of law relevant and of keeping students interested. It is not clear that either then or now we have reached a point of great success. But the point is worth remembering—for law students, it always makes sense to start from the most general principle and then proceed to the most intricate and specific application. That is the essence of the study of civil law in many states. In the United States, a different approach is sometimes more popular. That approach takes the whole fo the law and works through it from “beginning to end”. The reason this approach works in the United States, especially with respect to common law is because the basic principles are built into the specific application of law to particular groups of related cases (e.g., person A hits person B). By working through these, group by group, the general principles of law eventually emerge. That, for example, is the way one might constructively study torts.
It is only after this broad discussion of justice and the construction of an appropriate pedagogy that the Institutes, at last, arrive at the central issue; what is law? The Institutes provide an ambiguous answer: “The precepts of the law are these: to live honestly, to injure no one, and to give every man his due” (Book I, tit. I.3)). Law, then, appears to be the means through which justice is manifested in society. Law is the manifestation of accessibility and predictability at the center of justice; it is justice made manifest. But the definition also leaves open the issue of the content of law. That is a subject related but extrinsic to law. (Bk.I.Tit.I.4). What that means is that merely because one knows how to make law does not mean she knows what sort of law to make. The content of law, its substance, comes from outside of law itself. You have to look for the particulars of law elsewhere. The Institutes will eventually point to where those authoritative sources are. The student will find that these sources remain relevant for law making today.
But to make law one needs more than a source for what to make law about, one needs a structure through which to make law. Unlike the study of jurisprudence, which is disassociated from the structures through which individuals combine to form their political societies, the study of law is firmly tied to the governmental systems of the state through which it is created. The state provides the context for the specific elaboration of the content of law, and also for the legitimate construction of that content. The state is the space through which the extrinsic meaning of “every person’s due” is made intrinsic, legitimate and enforceable against individuals and the state itself. Because of the pivotal relationship between law and the state, it comes as no surprise that the study of law is divided by reference to the state. The Institutes, like most law systems today, make a distinction between public law (the law of the state) and private law (the law applicable to the activities of individuals). The law of the state is self-referential—it is constructed of itself, by itself and for itself. This law of the constitution remains very much a work in progress both among our intellectual ancestors and the community of states today.
It is only with respect to the law touching on individual activities that the issue of extrinsic sources at last is confronted. And at last the Institutes introduce what it identifies as the three principal extrinsic sources of law: “collected from the precepts of nature, from those of the law of nations, or from those of the civil law of Rome.” (Bk.I.Tit.I.4). These continue to form the most important legitimating sources of law, sufficiently well respected to induce both acceptance and compliance. But what exactly do these sources describe? The first is the most open ended and ambiguous. It suggests the law of nature, a substantially unhelpful approach. For many, from the time of the Institutes through the present day in the United States and elsewhere, the “precepts of nature” has been interpreted as the “law” of religion. For others, and especially after the Enlightenment in the West (and in some Marxist Leninist states as well), the “precepts of nature” point to scientific knowledge, that is to rules observed within the nature world about the “way things work”—truth from facts (or “scientific development in the language of Chinese Marxist Leninism). The question of nature as an extrinsic source of law remains a lively subject of debate today, one that is evident throughout the traditional first year law school curriculum. Students might find it useful to see which sort of “precepts of nature” are deployed to justify particular law and policy decisions by courts.
The second and third are perhaps sources are no less interesting but easier to describe. At first glance both appear circular—the extrinsic source of law is law. But a closer reading suggests something more interesting. Both the law of nations and the civil law of Rome point to the importance of custom and tradition as a baseline source of law. That is, the law of nations is whatever it is the community of nations accept; traditionally those embody the customs of behavior expectations embraced by nations. The same is true for the civil law of Rome, which represents the elaboration and systematization over a long time of the customs and mores of the people of Rome (as Aristotle might have understood this in his Politics); in modern terms their common law. There is more, of course, and each of these sources of law can reveal theory own ambiguities. But for my purposes here, the most interesting aspects of these extrinsic sources point to the foundational importance of customs and traditions of the people as a source of law. These are as important today in U.S. jurisprudence as it has been in earlier Western legal cultures.
The notions about the fundamental character of these extrinsic sources are then elaborated in Title II.
The law of nature is first defined as the incorporation of the natural order into the legal order. It is based on the observations and conclusions drawn from those interpreting “nature “ in the sense that “a law not peculiar to the human race, but shared by all living creatures.” Ironically, the example provided in the Institutes is marriage between a man and a woman. Yet, to contemporary ears, that conclusion suggests the ways in which the human observer views the natural world and draw inferences therefrom that reflect more the observer than the phenomenon observed. Yet this basic notion of natural law has been an important element of U.S. law as well, framing everything from decisions about the role of women, gay marriage, sodomy, miscegenation, abortion, and murder. (Bk.I Tit. II) In modern form, this sort of law of nature permits the intrusion of science into lawmaking as providing the extrinsic justification for law. And, indeed, this relationship between the natural order of things and the observer is made explicit in the understanding of natural law. There is a divine or providential element to natural law that exists side by side with the natural law derived from the interpretation of natural phenomena: “the laws of nature, which are observed by all nations alike, are established, as it were, by divine providence, and remain ever fixed and immutable”. (Bk.I, tit. II 11).
The domestic law of a state and the law of nations proceeds not from nature but from the customs and peculiarities of the people who are bound thereby. (BookI,tit.II.1). The law of nations reflect the aggregations of individual customs of states but emerges from an exercise of the natural reason of all humanity. It’s relationship to natural law rests with the character of the law of nations—both are passive and derived from the observation of convention and custom that have acquired a universal interpretation. Neither is understood in an instrumental sense. One does not make the law of nature; neither, it seems, at this point in time, does one make the law of nature by agreement and prospectively; it acquires its character only when it is observed. This notion continues to survive into modern times in part as customary international law. Lastly, the Institutes note that the law of every state includes a mix of its own customs and statutes (civil law), the law of nations, and the law of nature.(Bk I.tit.2.1).
What the Institutes call civil law is in modern times usually referenced as the domestic legal order of a state. (Bk I, tit. II. 2). This is contrasted to the law of nations which bind all civilized people. But the law of nations as understood in the Institutes is not the equivalent to modern international law, that is, the law of relationships among states. It is a broader concept including those principles of behavior which were said to be common among all. In this sense, the law of nations comes closer to modern understandings of principles of global governance within the structures of globalization than it does classical international law. A hierarchy of law is suggested in the discussion of the law of nations—natural law is always inferior to a contrary principle of the law of nations. The example used in the Institutes is telling; the law of nations is the source of all contracts. This points to the transnational element of law, and for example, the lex mercatoria, but not to the formal structures of the law regulating the relations among states (ambassadors, the laws of war and the like). (Bk I, tit. II. 2).
Whatever its source, the Institutes suggest that law may take two forms; it may be written or unwritten. (Bk.I tit.II,3). This division was said itself to be a product of tradition and custom, reflecting the two approaches to law developed by Athens and Sparta. (Bk.I, Tit. II, 10). As is the case in modern states, the Institutes declare that every state is subject to law that is both written and unwritten. (Bk.I tit.II,3). It then describes the form that written law may take (“statutes, plebiscites, senatusconsults, enactments of the Emperors, edicts of the magistrates, and answers of those learned in the law”). (Bk.I tit.II,3). Many of these forms survive through modern times (statutes, plebiscites, etc.). Some remain important in the law systems of some states but not in others (e.g., the work of those learned in law). Some have disappeared except in attenuated form (e.g., senatusconsults). The character of written law is then addressed (Bk.Itit.II.4-8).
In contrast to the large variety of written law, unwritten law, as in our own time, is sourced principally from ancient custom. But such custom assumes the character of law only “when approved by consent of those who follow them” (Bk.I tit.II.9). Such customary law assumes the character of statutes.
The power to change the substance of law depends as well on its nature. Natural law is as immutable as nature or religion dictates. The law of nations and civil law are far more mutable. Both, however, are amendable only by consent, either directly by the people, or by the enactment of subsequent law. To that end, the legitimacy of enactment then becomes for the Institutes, as it does in our time, the essential feature of law systems. More tellingly, the tensions between the immutable laws of nature, the more mutable law of nations and the most mutable civil law are also acknowledged. (Bk.I tit.II.11). There is an allusion as well both to conflicts of law and to the framework within which these laws are interpreted. Lastly, the Institutes classify the entirety of the civil law as relating to either to persons, or to things, or to actions. (Bk.I tit.II.12). For many jurisdictions, this remains the structural framework for the division of civil law.
So, taken together, how might the Institutes help a student better approach an answer to the question: “what is law? There are a number of important insights that can be usefully extracted. First, the question of the identity of law is old. Much of the way in which modern states approach the issue of law can be traced back to our cultural roots in the great ancient republics and empires from which many European and Western Hemisphere states emerged. That definition suggests a connection but not an identity between law and justice. Both further suggest the core fundamental principles of law systems: accessibility and predictability. But notions of justice also suggest the basic contextual framework within which law is developed—the substantive content of law is grounded in notions of what is a person’s due. And, indeed, one way to understand law is the expression of a set and predictable system setting out what constitutes each person’s due. It is the means through which justice, as defined and structured, is manifested. That caveat is important. The relation between law and justice, then is structural but not necessarily substantive. Both concepts are empty vessels. Yet that is essentially the core nature of its character. But what becomes of the question of the substance of law? That aspect of the question is re-characterized as a question of the nature and content of the sources of law. Where law originates, then, serves to define its content. Those sources—the law of nature, the law of nations and the civil or positive law of a political unit, usually a state—define the universe of legal sources. Their character is inherent in their identity. Natural law is immutable; the law of nations more mutable and the civil law of a state the most flexible. Underlying much of law (beyond natural law) are notions of custom and tradition. Also identified as important are notions of consent. The aggregate law of every state is said to be derived from a combination (which can vary from state to state) of a combination of the three. Lastly, this framework leads to a fundamental conclusion—that there is no single or best set of substantive values or norms, that it is not possible to develop a single universal set of substantive law. These insights will be useful as a starting baseline for the students’ consideration of the “elements” of law in the United States.