Download UPDATED 2013 12 06 Comparative Law Final

2ND HALF OF SEMESTER:
STUDY SHEET FOR CLASS AFTER MIDTERM EXAM
ROMAN LAW
I.
We just finished studying Common Law System that developed in England from 1066 onward
A. Main Features:
1. Judge Made Law
2. Stare Decisis – Use of Precedents.
3. The system is Cheap. The Judges are Lazy: The Lazy Judge: Judges do as little work as possible.
a) Juries Decide Facts
b) Lawyers reduce questions to as narrow as possible
c) Judges answer questions as narrowly as possible
(1) Lazy Judge: will only create a new answer to new facts, otherwise Stare Decisis: rely on
precedent
(2) Lazy Judge: Makes Decisions based upon pragmatism – Is Free to Choose from
(3)
the Market Place of Ideas for his answers.
Lazy Judge: Over Time Develops a bias towards (#1) Fairness/Justice (#2) Freedom, but not limited
to any of these ideologies. Anglo-Saxon society then is a patch work of many ideologies interwoven
(a) Each Ideology is used where it is strongest and makes sense, and
ignored where it is weakest and doesn’t make sense.
II.
Napoleonic Code 1804 – French Armies conquer most of Europe and bring the Napoleonic
code with them.
A. In 19th Century France had concentrated wealth with suffering peasantry.
B. France – had multiple legal systems
1. French Judges had consistently resisted modernization, liberalization and reforms upto 1804
C. French Code was created by a commission of 4 jurists – two liberal, two conservative – with Napoleon presiding
1. Based largely upon Justinian’s Code
2. It incorporated multiple modern strains of thought: Equality, liberty, fairness, centralization of the state
3. Ended feudal institutions.
D. Napoleon was motivated to
1. Institutionalize the Liberal philosophies that impelled the French Revolution
a) End Fuedalism  which recognized hierarch of Kings, Nobels, and Commoners.
2. Provide one legal system for all of France
3. Simplify the law so anyone could understand it
E.
Ended Judge made law – in Civil Code systems all law must be made by legislature.
F. Napoleon created five basic codes
1. The Civil Code
2. The Penal Code
3. The commercial code
4. Codes for Civil and Criminal procedure
G. Values of the French Code
1. Liberty
2. Equality.
3. Private Property – but eliminated notions of feudalism.
4. Freedom of contract
5. Patriarchal family
III. German Civil Code 1896
A. Basically an outgrowth of Roman Law as received from Justinian’s code
B. With some German elements
C. Highly abstract in its construction
D. Extremely precise
E. Created a logically closed system
F. Hierarchical construction of the law
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GENERAL STUDY: THE BEST WAY TO STUDY FOR THE EXAM IS TO USE TIME LINES
Time Line
(Blue 푸른 = 유럽 민법 전통 European Civil Code Tradition)
(Red빨강 = 영어 관습법 전통 England/Common Law Tradition)
(Green 녹색 = 두 Both)
A. Dawn of Time – Big Bang!
IV.
1. Human’s evolve into Hunting and Gathering societies: Basically capable of Fairness, but Poor. .
a) Small groups, very narrow social scale, mutually dependent upon each other for indefinite time, are able to
develop basically fair societies, but food and material production is limited. THEY are POOR.
B.
14,000 – 11,000 b.c.e. Neolithic / Agricultural Revolution
1. Economic activities begin to specialize, society become less cohesive/inclusive,
2. Societies Rich, but Unfair and extremely harsh, Therefore, brittle, prone to collapse.
C.
500 b.c.e. AXIAL AGE in Europe and Asia Only
1. Development of philosophies and religions centered on the concept of Fairness.
a) Confucius – China
b) Buddha - India
c) Zoroaster - Iran
d) Isaiah- Israel
e) Socretes - Greece
2. Informal Norms 3. Emergence of Great Empires in China, India, Iran and later Gree .
D.
450 b.c.e. Roman Law – the creation of the 12 tables.
1.
2.
3.
4.
Less lofty principles
Provide some justice and inclusiveness
Force of Law!!!!
Emergence of Roman Empire
E.
43 c.e. Roman conquers Britain
F.
410 c.e. Rome abandons Britain
G.
475 c.e. Fall of Western Roman Empire (Beginning of Dark Ages / Medieval Age)
1. Western Europe Politically Fractured
2. Barbarian invasions in France, Spain, Italy, England – Roman law replaced in part or in whole, by Barbarian
traditional norms
H.
410 – 600+ Angles-Saxons Invade England
I.
529 to 534 Eastern Roman Emperor Justinian compiles his legal code, organizing and condensing 1000 years
of Roman legal wisdom Corpus Juris Civilis. Introduces it to Italy for short period
J.
568 Lombards, barbarian tribe from Germany conquer Italy – Italy re-enters dark age.
K.
700-1000 Viking Age of Terror in Europe.
L.
900 – France Grants Duchy of Normandy to the Vikings (as fief to the King of France)
M.
1000 – Europe begins to recover from the Dark Ages (Barbarian Invasions + Viking Terror): Italy recovers 1 st .
(The acknowledged date is 1050)
N.
1050 – Normans in France are culturally French, and speak French
O.
1066 – William, Duke of Normandy, Conquers France
P.
1070 – Books containing Justinians Code (Corpus Juris Civilis) found near Ravenna. Because of expanding
Italian trade, the system legal system with its complex remedies for trade is valued and put to use immediately.
Q.
1073 – William returns to Normandy in France and remains there most of his life, as do the next 3 kings of France.
Common Law developes largely while King is absent from England. Judges Make Law thru their Decisions
(answers) to narrowly defined questions.
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R.
1088 – University of Bologne (near Ravenna) established to teach Roman Law. Students come from all over
Europe to study. Soon they return to their countries and will open Universities there to teach law and so Roman Law
is revived through out Western Europe. .
S.
1189 – Beginning of Common Law Precedents for Stare Decisis. English law develops bias towards justice, liberty
T.
1215 – Magna Carta: King concedes to 1) Rule of law, 3) Parliament, 3) Rights to nobles (lords) and commoners
U.
1688 Glorius Revolution – Parliament becomes more powerful than King – Results in professional government
administration in England, leading quickly to the ascent of England into a world power by 1763.
V.
1804 – Napoleonic Civil Code – Based upon Justinians Corpus Juris Civilis - Condenses and modernizes Roman
Law, introduces and modifies Roman law with concepts of Equality, Liberty. System is Straight forward
1. Will Spread to Spain, Italy, Western Germany, Latin America
2. Unlike Common Law – Civil Code Tradition Says ONLY LEDISLATURES MAKE LAW.
W.
1896 – German Civil Similar to Napoleonic Code, but more elegant, scientific, also able to incorporate notions related
to industrialization. Even more efficient, condensed than Napoleonic law: general provisions, and specific bodies of
law.
1. Highly Influential in Germany, Poland, Turkey, Korea and Japan.
X. Korea’s system today has a mix of French and German Civil Code
If we shape structures (such as the law) and law shapes us: Can we see a difference between
Common Law Societies and Civil Code societies?.
Remember one is based upon judge made law, the other is not.
General Review for Final Exam:
V. Mechanisms in Civics:
A.
Evolution of Cooperation by Robert Axelrod
1. Also called the “The Prisoner’s Dilemma”
a) The Book asks: When there is no central controlling authority (such as a state) will Cooperation
emerge?
b) Answer Yes (네!) – When there is a repetitive (iterative) game with no foreseeable end. The best
strategy is cooperation. (반복 (반복) 게임은 예측 가능한 끝이있는 경우도 있습니다. 가장 좋은 전략은 협력입니다.)
c) Corollary
(1) If there is a foreseeable end, even in the far distance, it pays to stop cooperating immediately.
(예측 단부가있는 경우에도 작게 거리에 즉시 협력 중지 지불한다.)
(2) The Second best Strategy is Tit-for-Tat
(a) Tit-for-tat should eventually lead back to cooperation
2. The Evolution of Cooperation explains many events in History (협력의 진화 역사에서 많은 이벤트를 설명합니다):
a) A possible reason hunting and gathering societies might often have practiced fairness (small simple
communities)
(가능한 이유는 사냥과 수집 사회는 종종 공정성을 연습했을 수 있습니다)
(1) (hunting and gathering societies involved mutual dependency, with no foreseeable end)
(사냥과 수집 사회는 예측 가능한 끝, 상호 의존성을 포함)
b) The Creation of the city of Rome resulted from a (contractual) agreement between 7 villages on 7 hill tops to
take advantage of their location on Italy’s major trade route
(로마의 도시의 창조는 이탈리아의 주요 무역 노선에 자신의 위치를 활용하는 7 언덕 꼭대기에 7 마을 사이에 (계약) 계약의
결과.)
c) As a general basis for why we have laws in society
(우리 사회에서 법이 이유에 대한 일반적인 기준으로)
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B.
The Jurisprudence of the Carrot and the Stick:
The Jurisprudence of the Carrot and the Stick”
The Jurisprudence of the Carrot and the Stick.
Definitions:
Jurisprudence = Philosophy of Law (philosophy = 철학; Law = 법)
Carrot = Moral Authority (도덕적 권위) / Perceived Legitimacy (인식 정당성)
Stick = Coercive Authority/Coercive Force (Coercive =강제적 인; Authority=권위;
Force=강제)
Function:
Stick:
Coercive authority or force is highly expedient – meaning it works effectively and quickly. It
is extremely expensive (매우 싼) to use – and so over the long term, is not sustainable (지속
가능하지).
Carrot:
Moral Authority/Perceived legitimacy takes a long time to acquire – but it is very inexpensive
to use and therefore it is sustainable. (sustainable=지속)

The more stick one uses, the less stick one has, but also, the less carrot one tends to have.
(하나 더 사용하는 스틱, 덜 하나가 스틱뿐만 아니라, 작은 당근 하나를 가지고하는 경향이있다).

The more carrot one aquires, the less stick one has to use, but also the more stick one will have.
All legal systems and political regimes must constitute some combination of these two authorities (모든
법률 체계와 정치 체제는이 두 기관의 조합을 구성해야) – but some regimes are ineffective because they have
poor balance. (그들은 가난한 균형을 가지고 있기 때문에 어떤 정권이 효과입니다.)
North Korea relies almost completely upon stick – and as a result has a big military but a very poor country and
therefore the regime’s sustainability is always in question.
United Nations relies almost completely upon carrot – and as a result has legitimacy, however, it cannot bring
about enforcement of its rules quickly or easily.
The more foreign competition that a regime faces, the more it needs to pursue moral authority with its
own people. (정권이 직면하고있는 많은 외국과의 경쟁, 더는 자신의 사람들과 도덕적 권위를 추구 할
필요가있다.)
Because political fragmentation was a constant feature of Europe, inclusive legal systems developed there
in order to help regimes acquire greater moral authority with their own people while saving coercive
authority for dealing with foreign competition. (정치적 분열은 유럽의 일정한 기능 때문에, 포괄적 인
법률 체계는 외국과의 경쟁을 처리하기위한 강제적 인 권한을 저장하는 동안 정권이 자신의 사람들과 더
큰 도덕적 권위를 습득하기 위해 거기를 개발했다.)
.
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VI. The Jurisprudence of the Carrot and the Stick explains why inclusive legal systems developed in Europe
A. Roman Law  The Civil Code Tradition (Rome was surrounded by enemies)
B. Common Law  England’s Kings were constantly fighting in France and against Scotland.
VII. Roman Law - Background
A.
Roman Law – 12 Tables created: 450 bc.
1. Creates Social Contract bind both Patricians and Plebians equally before the law
a) Constitution that favored Patricians, but provided rights and to all
b) Law – legal system – all were equal before it.
B. Evolution of Roman Law
1. As empire expands, trade expands with it, and for 900 years the legal system becomes more and more
sophisticated for handling
a) Principles in equity – especially in Business Disputes
b) Contract and trade exchanges
c) Torts
d) Civil procedure
e) Criminal law
f) Property law.
2. Professionalization of Law:
a) Roman society produces specialist in regard to the law
b) Commentators
c) Judges
d) Lawyers.
C. Facilitates Expansion of Rome
1. Foreign Conquest – the farther away from Rome, the less binding and effective the Roman Social
contract.
2. Foreign Conquest favored the Patricians
3. Foreign Conquest hurt ordinary Plebians.
4. Over time wealth concentrates in the Patrician class.
5. In 44 b.c.e the Social Contract is thrown out
a) Patricians and Senate still exist – they still get to accumulate wealth
b) All political power is vested in one man, the Emperor
D.
Collapse of Rome
1. From the time of Emperor Diocletion and his political reforms – beginning in 305, Empire increasingly
split between East and West to facilitate administration.
2.
Western Roman Empire Collapses in 476
a) Causes:
(1) Concentration of wealth – result of throwing out the Constitution from Social Contract 0f 450
(however, Roman Law remains in place).
(a) By 450 c.e. 6 senators own half of North Africa!!!
(b) Wealthy and powerful use their influence to avoid paying taxes.
(c) Rome lacks the political will to raise enough tax money to pay for a large enough army to defend its
boarders
(i) By 300c.e. – most of the army is manned by Germans because they take less wages.
(2) Landless, illiterate, uneducated Germanic tribes begin to cross over the Roman boarder and eventually
control large amounts of land (See Map of Barbarian Kingdoms Around 500c.e.)
b)
Barbarian Germanic Tribes – Tribal Overlays Roman Law, much Roman Law then is
Lost
(1)
(2)
(3)
(4)
(5)
(6)
Angles  place name England
Saxons  place names; Saxony, Upper Saxony, Saxony Anhalt
Franks  Franconia, France
Alemmanni  (French word for Germany = Allemagne
Burgundians  Burgundy
West Goths (Visigoths)  Spain
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(7) East Goths (Ostrogoths)  Italy
(8) Vandals  (Verb, to vandalize, to destroy property)
(9) Lombards  Lombardy (todays Milan).
(10) Huns  In English, Hungary
c) Barbarian Kingdoms control all of the Western Roman Empire by around 500
(1) Dark ages ensue, to last for more than 500 years.
(2) No literacy (except for a few clerks and religious clergy). No learning, no science, no trade or commerce
(3) Barbarian leaders relied on existing practices in Roman law to rule over romans.
(4) Local rule – often local customs displaced law
(5) Generally, hybrid of Barbarian customs and indigenous Roman law practiced.
E.
Eastern Roman Empire Survives and with it, Roman Legal Tradition
1.
Justinian – Ruled Eastern Roman Empire from 527 - 565
2.
Justinian Code - Corpus Juris Civilis compiled by 534. Consolidates all
and the best of Roman Legal tradition !!!!!!!!!!!!!!!!!!!!
a)
4 Books:
(1)
(2)
Code (Codex) - (the legal code): Imperial legislation going back to the 1st century
Digest – Collection of the MOST valuable legal essays from over 900 years of Roman deliberation on
law
(a) Extremely important – Compilation of collected wisdom – for the laws of
(i) Torts
(ii) Contracts
(iii) Remedies
(3)
(4)
Institutions – Text book
Novellae – New laws pasted after 534
3. 535 - 552 Justinian reconquers Italy, North Africa and the southern tip of Spain.
a) Italy ruled as a province of the Eastern Roman Empire, from the City of Ravenna, Italy
(1) Copies of the Corpus Juris Civilis were brought to Italy to facilitate civic administration
4.
567 Italy falls to Lombards – Last barbarian Germanic invasion around 567
a) Dark ages finally hit Italy
b) However, copies of the Corpus Juris Civilis remain, deposited in nearby Bologne, Italy
VIII. Revival of Roman Law
A.
Europe experiences recovery after 1000 (acknowledged date is 1050)
1. Map of Europe roughly about what it is today: France, England, Scotland, Germany (in small states), Italy (in
small states), Poland, Spain (fragmented, Arab occupation in the South) etc…
2. Central Governments become stronger.
a) Promote economic growth, commerce to enrich their realm.
B. Economic expansion, increase commerce, long distance trade, create an economic revival and a need for
more sophisticated legal system
C. Justinians Digest found in Bologna in 1070. Bologna University established 1088, primarily, to
teach Roman Law.
1. Students arrive from all the countries of Europe to study Roman law.
2. These students take back to their country establish their own Universities. The Roman legal system begins to reemerge as the dominant legal system on the Continent of Europe
D. Roman law begins to evolve once again through the new growing community of legal scholars throughout
Europe (Called the “Jus Commune” – Legal Community: glossators
1. In many cases exist at first only as academic subject
2. Scholars then begin transmitting the legal answers to legal questions to the local jurist and by this means Roman
Law is revived in Europe over time.
E. Despite this, there is a great deal of variation in legal systems through out Europe, and in the case of France there
were two legal systems, one in the North and another in the South. .
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IX. Other Legal Systems in Middle Ages
A. Canon Law = Church Law
1. Family Law
2. Can be applied to contracts (oaths)
B. Law Merchant = Trades and Guilds
1. Creation of a body of law for unique types of commerce that took place in the middle ages that had no
precedent Roman tradition: exchanges at trade fairs, international commerce and commercial rules.
X. The Common Law Legal Tradition
A.
Important events in English Common Law History
1. 43ce Rome conquers Britain (England and Wales)
2. 410ce Rome abandons Britain
3. 410-600ce Anglo-Saxons migrate to Britain and form mini-kingdoms until there is one kingdom
called England
4. 700-1000 Age of the Vikings (Norsemen, Normans) terrorize Europe, settle in Normandy France
5. 900 King of France grants the Duchy of Normandy to the Vikings. The Duke of Normandy is
vassal to King
6. 1050 Vikings in Normandy speak French
7. 1066 Norman Invasion of England by William the Conqueror
8. 1189 – the beginning of the development of the common law agencies
a) First precedents for Common Law begins
9. 1215 – Tyrannical rule from arbitrary acts by King John results in the Magna Carta.
a) King John needs money
b) Aristocracy and leading Commoners have money but want rights
Magna Carta 1215
(1) Ends arbitrary rule by the King
(2) Establilshes rights to lords and to people
(3) Established parliament to which the King must appeal for raising money.
10. 1688 – Glorious Revolution – Parliament becomes more powerful than the King, installs professional
government – England begins to ascend to become a world power (1763)
c)
II.
What the king wants from Law
1) Enhance his moral authority
2) Cheap, Cheap, Cheap
a. Cheap decisions
b. Low involvement.
3) Increase his income
a. King wants a society that runs efficiently and effectively.
b. King wants a prosperous economy so he can generate more tax revenue
4) What the common people want
a. Law that works,
b. is effective,
c. is practical.
d. Fair / Just
e. Liberal (maximize freedom).
f. Consistent (predictable)
5) What does Jurisprudence demand of a legal system?
a. It must work (must be efficacious: King’s army enforces Judge’s decisions)
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It must be just/fair, but can only be fair where it doesn’t violate efficacy
c. It would be nice if it is ethical, but only where it doesn’t violate efficacy and fairness
d. It would be nice if it promotes liberty, but only where it doesn’t violate efficacy and fairness
e. It would be nice if it is cheap (the cheaper the legal system, the more sustainable).
b.
f. Should be Consistent (predictable)
I.
Agencies of English Common Law. Common Law has 2 important
characteristics: Judge makes the law, and Stare Decisis
A.
B.
II.
Judge Made Law: The Judge creates law by providing narrow answers to narrow
questions
Stare Decisis: (latin for “let it stand”) = Precedent = Means, relying
upon a prior legal case with the same basic facts.
1. To be consistent the same facts should produce the same
answer.
a) If the question before the judge is basically the same as one
that was presented earlier in time, even to a different judge, the
judge will then rely upon the prior case’s ruling and the answer
that case provided.
Main Features of the Common Law System:
A.
Judge Made Law
B.
Stare Decisis – Use of Precedents.
C.
The system is Cheap. The Judges are Lazy:

The Lazy Judge: Judges do as little work as possible.
1. Juries Decide Facts
2. Lawyers reduce questions to as narrow as possible
3. Judges answer questions, but only as narrowly as possible, only when they have to:
a) The Lazy Judge: will only create a new answer to new facts, otherwise the lazy judge relies on
Stare Decisis (rely on precedent)
b) The Lazy Judge: Makes Decisions based upon pragmatism – Is Free to Choose from the Market Place
of Ideas for his answers.
c)
The Lazy Judge: Over Time Develops a bias towards (#1) Fairness/Justice
(#2) Liberty/Freedom,
Why Because…
(a) System is Cheap
(b) Judges are Lazy
(c) Decision based upon Fairness and Freedom tend to be self enforcing:
(i)
King does not have to spend money, Judge does not have to lift a finger
(2) but not limited to any of these ideologies. Anglo-Saxon society then is a patch work of
many ideologies interwoven.
(1)
III.
FIRAC
A. Fact = Background information necessary to present a question
B. Issue = Question
C. Reasoning and Analysis = Discussion
D. Conclussion = Answer to the Question
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YOU CAN STOP STUDYING FOR THE FINAL EXAM HERE !!!!
The rest of this
is EXTRA INFORMATION OR EXTRA CREDIT STUDY OF ISLAMIC LAW.
IV. Continental Europe and the Roman Legal Tradition: Napoleon and the Emergence of Civil Code Legal Tradition:

We left off with the revival of Roman law at the end of the Medieval Age (around 1050).
A. Why the revival of Roman Law in Europe?
1. Barbarian law had not developed notions of equity, contracts, and commercial law for settling disputes
that occurred in commerce. Also barbarian law only had a very primitive idea of property law.
B. The Law Merchant: Where Roman law fall short
1. Rules governing Trade Fairs, Trade Guides, International Merchant Associations evolved into the a body of law
called the Law Merchant
2. Rules for Trade fairs and trade guilds, Merchants associations – these did not exist in the Roman Empire
3. Created a kind of law for business men in the context of trade fairs. .
V. Reception – of Revived Roman private law –
A. So the Law in Europe was a big complex mess
1. Ecclesiastical courts (Roman Catholic Church Law) would apply Canon Law – which could include family
and contracts (because contract is an oath and one makes an oath to God).
2. Trade Guilds and Federations would usually apply the Law Merchant to a dispute.
3. Otherwise – people would take their disputes to the the court of the local ruling authority – what would they do?
a) They would use local custom (Barbarian) Law or statute.
(1) This could be the custom of the local ruling barbarian tribe
(2) This could be ‘rump’ roman law – the remainder of roman law
(3) If there was a statute they would use that
(4) Where there were gaps
(5) They would confer, if they were available, with the local University Scholars and fill in the gap with
Justinian Law – called the Jus Commune
4. Jus Commune – the evolving Code Civilus – or evolving of Justinian Code – in middle ages in Europe – proved
capable of handling the growing European economy
5. Roman public law was largely ignored.
VI. Late Middle Ages – and Early Modern age – The creation of Nation States (and national identities)
A. In Europe political boundries formed around nationalities.
B. Throughout the Middle Ages, Kings worked to achieve centralization of authority – mostly because they wanted to tax
the population directly.This created what would become modern “nations” or Nation States: Germany, France, Italy
C. Eventually “Nationalism” evolves into being
1. This lent itself towards “legal nationalism”
D. Various countries attempt to rationalize and simplify their legal systems after 1700.
VII.
Napoleonic Code 1804 – French Armies conquer most of Europe and bring the Napoleonic
code with them.
A. In 19th Century France had concentrated wealth with suffering peasantry.
B. France – had multiple legal systems
1. French Judges had consistently resisted modernization, liberalization and reforms upto 1804
C. French Code was created by a commission of 4 jurists – two liberal, two conservative – with Napoleon presiding
1. Based largely upon Justinian’s Code
2. It incorporated multiple modern strains of thought: Equality, liberty, fairness, centralization of the state
3. Ended feudal institutions.
D. Napoleon was motivated to
1. Institutionalize the Liberal philosophies that impelled the French Revolution
a) End Fuedalism  which recognized hierarch of Kings, Nobels, and Commoners.
2. Provide one legal system for all of France
3. Simplify the law so anyone could understand it
E.
Ended Judge made law – in Civil Code systems all law must be made by legislature.
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F. Napoleon created five basic codes
1. The Civil Code
2. The Penal Code
3. The commercial code
4. Codes for Civil and Criminal procedure
G. Values of the French Code
1. Liberty
2. Equality.
3. Private Property – but eliminated notions of feudalism.
4. Freedom of contract
5. Patriarchal family
VIII. German Civil Code 1896
A. Basically an outgrowth of Roman Law as received from Justinian’s code
B. With some German elements
C. Highly abstract in its construction
D. Extremely precise
E. Created a logically closed system
F. Hierarchical construction of the law
Optional SHORT Self Study for Extra Credit: An Introduction to the
Spirit of Islamic Law:
IX.
Timeline:
A. In 500ce Middle East Divided into Bi-Polar contest between East Roman Empire and Iran
(Sassanian Empire)
1. East-West Trade forced to go around Rome/Iran border – Mecca in Arabian Empire suddenly
becomes rich.
B. 570 Mohammed is Born. Orphaned at 6. Participates in Caravan trade to Roman Empire.Marries
wealthy widow.
C. 610 begins to hear Angel calling upon him to preach the word of God
D. 612 Begins preaching his new religion in Mecca. (Meccans view this as a threat to their
religious idol trade).
– Mohammeds Idea is – you embrace his religion, you join his “clan”. Therefore, his clan can grow!!!
Others can’t
E. 622, after death of uncle (still an orphan) Mohammed moves to Medina 300 miles away
– accepts job as a mediator between clans at Medina, but also, his followers are
enfranchised (a legally accepted clan).
– 1 thing Medina doesn’t realize is that Mohammed’s clan (religion) can absorb their members,
but they can’t absorb his – theirs is tribal based. Eventually Mohammed will be able to grow
his religion to dominate Medina. If you don’t join Mohommed and his band of muslims, you will
be left out
– Medina was an oasis – where people farmed. Since Muslims didn’t own land, they can’t farm
to live. Instead they begin to raid Mecca’s caravans that trade with the Roman Empire.
F. 624 – Battle of Badr – a victory of Muslims over Meccans during a major attempted raid of
Meccan caravan
G. 630 – Meccans accept the ascendancy of Mohammed. Take a front spot in Muslim
organization
H. 632 – Mohammed gains ascendancy over all of Arabia
I.
632- Mohammed dies
J.
634- Mohammed’s deputies (Caliphs) begin pushing out of Arabia against both Eastern
Roman Empire and Iran
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K.
644 – Control Syria, Egypt and Iran, By 720 – Conquer North Africa, Spain, Pakistan and Spain,
751- Reach the North West border of China.
Islam’s advantage was, Emphasis on Cohesion (especially in war) and Certainty. Today this is
a weakness
Modern Age – centrifugal  Specialization of task, became an advantage, and cohesion, then a
handicap.
MORE DETAILED INFORMATION: INTRODUCTION TO “SPIRIT” OF ISLAMIC LAW
L.
X. Background
1. Islam - Belated and last of the responses to the Axial problem.
B. Arabia:
1. Because of harsh climate never developed civilization. Still Pagan in 500 ce.
2. Arabs are disrespected by the Civilized areas that surround them. It as if civilization passed them by.
3. Pre-Islamic Legal System – tribal based Vendetta Law – highly established
a) Requires protection from one’s kin &/or clan
b) Mohammed was an orphan from age 6 – had to formally ask for protection “adoption” from his parents clan
(1) His Grandfather granted him protection
(2) After his Grandfather died, his Uncle Granted him protection
(3) Around 620, his uncle dies, new head of clan won’t offer protection.
(a) After this time, he was unprotected.
(b) Seeks protection in Ta’if, but is refused.
4. Mecca – had similar relation to peninsula as Rome, regarding trade.
a) Location of spring water, wells.
b) Pagan = Religious Neutrality – could trade with Christian Rome or Zoroaster Iran.
C. Eastern Roman Empire – Christianity established but divided by many sects.
(1) Arianism, Nestorianism, Monophysite, Coptic, and Official Roman Orthodox.
2. Rome Attempted to unify Empire around Orthodox Christianity, causing Empire to persecute other sects.
3. So Roman Empire divided along religious lines.
D. Life of Mohammed – like Jesus, there is very thin actual historical evidence of his every having existed
1. Koran, hadith, summa are all compolated over 150 years after Mohammeds death, and done so by the Caliph.
2. Born around 570 – Mecca, Orphan – constantly in danger of legally being disenfranchised.
3. Participated in Caravan trades from Mecca to Palestine in Roman Empire learns that:
a) Arabs were looked down upon as uncivilized pagan
b) Roman Law meant that he couldn’t be killed just for being an orphan.
c) So Mohammed motivated to advance civilization of the like Rome to the Arabs.
d) Witness The theological disputes.
(1) Religious Division over
(a) The Nature of Christ
(b) Iconoclasm (artistic depictions in religion)
4. Mohammed systems would attempt to
a) bring civilization to the Arabs, end paganism, introduce more advanced legal norms
b) Sought to avoid the problems of Roman System
(1) Defined the nature of Christ (a man, not god, but prophet)
(2) Ban icons (art in religion)
(3) Create Cohesion to avoid Rome’s divisions.
(a) 1 Religion, 1 God, 1 Prophet, 1 Community, 1 law: 1, 1, 1, 1, 1, etc…
(b) God is a certainty. One must simply submit oneself to that certainty, and discover his laws.
(i) God is Ruler, Man is Subject, Man’s job is to determine gods laws and follow them.
5. Successful business person – good reputation for being fair in his business dealings.
6. Married rich widow and managed her business affairs
7. Began receiving religious instructions from the angel Gabriel in 610
a) Began Preching in 612
b) Creates his own “tribe” but this tribe is created, not by blood or kinship, but by belief.
(1) One only must accept/submit to Islam, then one joins that tribe, & protected/subject to Islamic law
c) Axial Age Problem revisited:
(1) Because of caravan trade, wealth is suddenly becoming concentrated in Mecca, making life harder for
more and more ordinary people
(2) In order to make itself attractive to adherents, Islam reacts to that concentration of wealth:
(3) Outlaws usury (interest bearing loans),
(4) Zagat tax – Aid to the Poor – one of 5 pillars of Islam: 2.5% of person’s wealth to the poor.
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8. Migrated to Medina in 622
a) Uncle dies, and is looking for a place for protection. Find it in Medina, hired to be a judge there
b) His Tribe becomes enfranchised into the Medina constitution.
c) Muslims raid Meccan Caravans for money - War between Medina and Mecca results
9. Raids Meccan caravans – results in the battle of Badr in 624 – on going war with Mecca through 630.
10. Prevails upon Mecca in 630
11. Consolidates all of the Arabian Peninsula by 632
E. Islam Religion – “Peaceful Submission” of oneself to God”
1. Cohesion: it all comes back to one man.
it is a bundled system!!!!!
a) One God, One Prophet, One Community, One Law:
b) Focus on religious law and private law
c) Despite aspiration, much of the Islamic law is a continuation of pre-islamic norms regarding property
and family.
(1) Stealing results in loss of one’s hand.
(2) Polygamy – multiple wives – but limited to 4.
d) Exceptions –
(1) Prohibition on usury – loaning money for interest payment
(2) Zagat tax–
2. Strict monotheism – traces itself back to Abraham (found of Jewish religion) through Ishmael
a) Not so much faith, or belief: that god exist is a certainty – one merely must figure out God’s law 
3. Sharia – Islamic law Sources: (religion, ethics, economics, politics, personal practices, diet, crime etc…)
a) Koran – commands Muslims to follow the example set by Mohammed
b) Sunnah – Practice and Acts of Mohammed – Sunnah
c) Sura: Habits and life (biography) of Mohammed
d) Hadith – legal schools of thought based upon the Sunnah.
F. Variations in Islam
1. Despite the emphasis in cohesion, Islam still splintered, just after Mohammed died.
a) Shia  Multiple branches of Shia.
b) Sunni  Multiple branches
c) Sufi. Duze, Bahai (believe all religions come from same thought, so believes in all rel
2. Bahai – believes all religions come from the same thought – so believes in all religions
XI. Life in Arabia, despite Islam, largely reverts back to Pre-Islamic practices after 700
A. The focus of Islam moves north to Damascus in Syria in 661, and then to Bagdad in Iraq in 750.
B. Tribal, Clan, Family based vendetta law continues into the 20th century – when Islamic law re-emerges
C. Movie: Lawrence of Arabia (filmed where Mohammed came from), demonstrates Vendetta practice.
XII. Systems of law, like ethical and religious systems appear to be an attempt to deal with the Axial Age problem:
Epistomology
Founder(s)
Type Ethical System
Direct Effect of Norms Legacy/Indirect effect
Confucianism
Confucious
System of Philosophy
Informal (some Public
After 500 years become
Law)
ideology of East Asian
states, results in formal
Public Laws
Toaism
Lao-zte
System of Philosophy
Informal
Indirectly affects law
Zoroastrianism
Zoroaster
Religious System
Informal
Indirectly affects law
Greek Sophism
Pythagorus,
System of Philosophy
Informal
Indirectly affects law
(Pythagorus,
Socrates, Plato, etc…
Socrates, Plato, etc.)
Buddhism
Buddha
Religious System
Informal
Indirectly affects law
Roman Law
City of Rome
Pragmatic Legal
Formal Norms/
Continued evolution
System
Positive Law
and refinement from
450 b.c.e forward.
Rerecieved in Western
Europe after 1070,
directly impacts French
and German Civil Code
systems in 19th
Century. Cultural
informal norms spread
Christianity
Jesus, Peter, Paul
Religious System
Informal
Indirectly affects law
Islam
Mohammed
Religious System AND
Informal AND formal
Immediate expansion
Political Ideology
from Atlantic Ocean to
AND Legal System and
Chinese border.
everything else
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