全英外国法制史复习资料

WESTERN LEGAL HISTORY: FINAL EXAMINATION STUDY GUIDE

SHORT ANSWERS: (5 questions for each, 20 marks in all)

Socrates was a classical Greek Athenian philosopher. Credited as one of the founders of Western philosophy, he is an enigmatic figure known chiefly through the accounts of later classical writers, especially the writings of .his students Plato and Xenophon, and the plays of his contemporary Aristophanes.

●Justice is the interest of the people

●People have the benefit of laws, so agree to respect them

●Disobedience of the law destroys the law and the state

●Justice is a compromise: doing wrong or being wronged

Plato was a Classical Greek philosopher, mathematician, writer of philosophical dialogues, and founder of the Academy in Athens, the first institution of higher learning in the Western world. He used to advocate that the king of a country should be a philosopher, but later changes his mind.

●Human nature commits injustice whenever it is possible

●Dominant class makes law for self

●Proper role of law is ensuring the general benefit

Aristotle was a Greek philosopher, a student of Plato and teacher of Alexander the Great. His writings cover many subjects, including physics, metaphysics, poetry, theater, music, logic , rhetoric, politics, government, ethics, biology, and zoology. Aristotle believes in the function of the law and insists that rule of law is better than rule of men.

●Public officials must cr itically study different cities? laws

●The laws must be adapted to different circumstances of people

●The character of law is …a kind of order?, and the law also has a …compulsive force?

●Man has a natural instinct to live in orderly communities

●Man?s nature desires the best life he can get

●Man is a “political animal”

Cicero was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He is widely considered one of Rome?s greatest orators and prose stylists.

He is also considered as the ancient pioneer of the separation of powers into three separate branches of government

●Law is the bond, agreement and partnership of men.

●The law is inseparable from the reason given of nature

●Law is right reason in commanding and prohibiting

●The natural social instinct is the source of law itself

●Evil law is illegal

自然法效力高于实在法

自然法是与自然即事物的本质相适应的法

人人平等

恶法非法

ST. THOMAS AQUINAS

Aquinas is an Italian priest of the Catholic Church and an influential philosopher and theologian in

the tradition of scholasticism. He advocates that the purpose of church is to pursue the supernatural

good, that is, to know the god. Supernatural good is higher than the public good that the government pursues, so the church should be in command.

托马斯的政治思想是神权政治论，其核心是上帝高于一切，一切服务于上帝。他主张政治隶属

于宗教，世俗服从于教会，皇帝受命于教皇，其实质是维护封建宗教神学和教会的利益。

●God is the highest good and the cause of all things.

●Human law is the effort of reasoning from the eternal laws.

●The order of nature is the result of one god.

SHORT DEFINITIONS: (5 questions, 4 marks for each, 20 marks in all)

?THE STATE (GOVERNMENT & RULERS)

The state is an organized community living under a government.

?NATURAL LAW

Natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior.(Principles which are “naturally” right and proper)

?POSITIVE LAW

Positive law is the term generally used to describe man-made laws that is set by political superiors to political inferiors

●LAW (RULES) AND EQUITY (JUSTICE)普通法和衡平法

Aristotle on Law and Equity.

Equity: what is equitable is in fact just, not according to law; rather it is a …correction? of legal justice

Law: law is a set of rules enacted by the authorities or developed from the custom which is recognized by the community as binding to all members.

?RULE OF LAW

Rule of law is the legal principle that law should govern a nation, as opposed to arbitrary decisions by individual government official s. That means RULE of LAW is the principle that every person and organization, including the government, is subject to the same laws.

?RULE OF MEN

Rule of men is a society in which one person, or a group of persons, rules arbitrarily.

?LEGISLATION (STATUTES)

Legislation is law which has been enacted by a legislature or other governing body, or the process of making it.

A statute is a formal written enactment of a legislative authority that governs a state, city, or county.

?CUSTOM (ANCIENT LAWS)

Custom is a rule of conduct in society, established by long use and binding those under it, and it derives its

force from the tacit consent of the legislature and the people, and supposes an original, actual deed or agreement.

TRUE AND FALSE: (15 questions, 2 marks for each, 30 marks in all)

Greek political system

Political Structure of Ancient Greece

?City-States: Greece then not a single nation-state

–collection of city-states in the Mediterranean (Hellenic)

?Athens: greatest city-state which dominated region

–smaller cities still independent political entities (alliance)

?Autonomy: each city-state could make own laws

–decided their own policies, paid tribute ships or money

?Greek Politics: cities varied in the political systems

–kingships, tyrannies, oligarchies, democracies (Athens)

Greek laws and writings

古希腊奴隶制社会、特别是雅典城邦的法律思想。古希腊并没有出现象罗马帝国那样发达的法律制度和专业的法学家集团。但在古希腊的哲学、伦理、政治思想以至文学中，包含了许多有关法律基本问题的探讨。例如，法是神授还是人定的，法代表正义、自然还是代表强权，法与国家、民主、自由、平等的关系，法的作用，法治还是贤人政治，自然法代表什么及其与实在法的关系，这些在西方中世纪以至近代、现代法学界中争论过的问题，在古希腊时都曾涉及，并对后世西方法律思想的发展发生了重大影响。

古希腊文学是整个西方文学的源头，也是欧洲文学的第一个高峰。古希腊文学反映了欧洲从氏族社会向奴隶制社会过渡时期的现实生活，特别体现了古代世界的人们对战争与和平、人与自然之间的关系的思考。古希腊时代显赫的英雄行为和社会历史的重大变迁都在文学作品中得以深刻的体现。这些文学作品不仅为整个西方文学的发展奠定了基调，也为人们研究古希腊世界的历史与社会提供了丰富的文献资料。

?Greek Law: various codes/rules of city-states-Rome

–unified Greek legal system never existed (no Greek state)

?Legal Science: Greeks never produced legal texts

–Roman jurists were the first to give code to the world

?Legal Treatises: was never written by the Greeks

–no school of legal instruction was operated in Greece

?Law Codes: never written down and distributed

–some statutes found engraved on stone or on bronze

?Literature: law of Athens found in ancient writing

–historians, philosophers, dramatists, poets, and orators

?Legal Theory: not distinct from the actual laws

–no recognized and distinct branch of philosophy of law

Early European statutes

?Law: the earliest European appearance of statutes

–Dracon: a famous lawgiver of the 7th Century BC

–Solon: a famous lawgiver of the 6th Century BC

?Tablets: first efforts to inscribe in permanent form

–Rules in a public form which could not be changed

?Legislation: original Greek laws were from Kings

–later legislative process from majority vote of the people

?Codes: laws became not only customs but statutes

–statutes later became only source of law (not customs)

Early Western customs

?Custom: formerly the rules were only principles

–arbitrarily interpreted/enforced by self-interested king

Rule of Law

The Rule of Law: The Greek Mind

?Law: the Ruler of city should also be governed by laws

–Authorities act in accordance with known laws (not arbitrarily)

?Ruler: rule of the law not arbitrary decisions by ruler

–General sovereignty of the law governs, not arbitrary rule of king

–Specific sovereignty over rulers is essential to a good government

Social Contract

用契约关系解释社会和国家起源的政治哲学理论

?Social Contract: agreement of citizen & government

–submission to government & law is civic duty of citizen

Rulers Obeying Laws

?“an emperor… (in rule by law)

–must behave as if he were answerable to his own laws”-Seneca

?“an emperor…(in absolutism)

–released from the laws, free from following the laws”-Cassius

Theory of Equality in the Law

Equality Before the Law

?Personal Merit: proud feature of Athenian system which leads to honor and preferment in a society

Aristotle (Rhetoric) ?Hierarchy: regardless of rank and office of men, as regards the law, all men are on an equal

footing

Thucydides (Pericles) ?Individuals: Dracon forbade any laws aimed just at individuals, for as everyone shared in the rest of the state, so all should share equally in its laws

Demosthenes (Dracon) Nature: our equality of birth by nature impels us to seek equality under the law

Plato (Menexenus) Theory of Criminal Law – Intent

?Intent: relation of punishment to a person?s state of mind

–greater/lesser guilt related to subjective mind and circumstances

?Degrees: Homicide was divided by Dracon into degrees

–premeditated killing, provocation, unintentional, self-defense

?Severity: voluntary and involuntary wrongs are distinct

–act of greater evil=greater punishment; an act of lesser evil=less

?Rulers: useful to consider when giving reward/punishment

–willful =resentment/punishment; unintentional deserves pardon

?Behavior: the intent cannot be lessened by own behavior

–drunkenness or culpable ignorance of the law is no excuse (less)

?Punishment: depends on the seriousness of the offenses

–distinguish between trivial or major crimes, scale of punishment

Theory of Due Process of Law

?Due Process: right to notice, be heard in an orderly proceeding

–Strongly favored regular, impartial, judicial proceedings

Kelly (The Greeks) Canon Law (Church Law)

?Canon Law I: non-resistance to even wicked ruler

–Kings may even exceed the limits of customary law

?Canon Law II: conflict - Middle Ages legal theory

–Kings had moral obligation to people and to the laws

?Canon Law (Church): legislation must be …just?:

“…a law will be honorable, just, capable of being obeyed, in accordance with nature and in accord also with ancestral practice, adapted both to its time and to its place; necessary, useful and clear so there?s no misunderstanding, not framed for the advantage of any individual, but for the common benefit of the citizens.”

Roman Law (Justinian’s Code)

?History of Law: Justinian?s Digest (Roman law)

–Roman law of 1000 yrs: basic law code for the world

?Justinian?s Digest: Byzantine East Roman Empire

–Code: collection of 1000 years Roman Law (6th Century)

Ascending/Descending Theory of Law

?Ascending Theory: power comes from the people

–People delegate the power to their rulers (Germanic)

–Ruler not absolute but must respect the people?s laws

?Descending Theory: power is originally in ruler

–Romans say people give it; Christians say God gives it

–People have no role in limiting government, just submit

Secularism and Sectarianism Government

?Secularism: government is separate from religion

–Individualism: person is focal point in religion & politics

Machiavellian Theory on Government

有志于维持和扩大自己权力的统治者应该把欺骗、狡诈和谎言等手段与残酷的武力合起来使用。

?Machiavellian: political theory of pagan antiquity

–Morals of ancient Greece and Rome, not Christianity

“effective governance/state preservation are only interests, not natural law or moral concerns” “ruthless methods and violation of the law acceptable if necessary, just as the Romans ruled”

MULTIPLE CHOICE: (15 questions, 2 marks each, 30 marks in all)

1. Meaning of law: The Greeks developed different definitions and ideas:

(Pericles, Alcibiades, Lycurgus, Aristotle, and Plato)

公元前 5世纪雅典政治家伯里克利（约前495～前429）论述了雅典的奴隶主民主制与法律的关系，认为这种民主制的特点在于政权是在公民手中，每个人在法律上是平等的，在私人生活中是自由和宽恕的，但在公共事务中则遵守法律（修昔底德《伯罗奔尼撒战争史》）。在古希腊较早的诗篇、神话和哲学著作中，一般认为法律来源于神，例如悲剧家索福克勒斯（前496～前406）的剧本《安提戈涅》中提到，最高的法律是主神宙斯向人类宣布的，凡人的命令不能改变天神制定的永恒不变的不成文法。到公元前 5世纪的智者（一称诡辩学派）又向这种思想提出了挑战，认为法是人定的，甚至是“强权”的产物。

柏拉图最初推崇“贤人政治”，主张由哲学家担任国王，而对法的作用则极为轻视。他在《政治家篇》中论述不应当是法的全权而应当是人的全权，这种人了解君王职位的艺术并具有

智慧。但以后由于他在叙拉古推行“贤人政治”方案的失败，在其晚期著作《法律篇》中，又改变了他过去对法的看法。

与柏拉图不同，亚里士多德一直重视法的作用，认为“法治”优于“一人之治”；法治的意义在于法律获得普遍的服从，而这种法律又是制定得好的；法律和政体（指国家）不可分，其目的都在于谋求正义；法律之好坏或是否合乎正义都以政体如何为转移；法律又不同于政体，它是规章，其作用是执政者借以掌握权力并监察和处理一切违法失职的人。他在《政治学》和《伦理学》二书中，都曾分析了正义的概念，进一步解释了法律与平等的关系。在西方法律思想中，亚里士多德虽然在自然法问题上并没有系统地加以阐述，但他仍然是最早提出自然法思想的学者之一。

公元前 3世纪开始出现的斯多葛派（意译为“画廊派”，因该派讲学场所有彩色画廊而得名），进一步提出了自然法思想，并认为自然法代表理性，是普遍适用的,高于一切城邦法律之上。这种思想后来传入罗马,对罗马法的蓬勃发展起过重大作用。

●Pericles: laws are measures that the people?s assembly has approved, the …conduct to be

observed or avoided? 我们的国体之所以被称作民主，是因为权力不是被少数人、而是被所有人民所掌握。当私人纠纷产生时，所有人在法律面前一律平等。

●Alcibiades: The authority of the people cannot be essential to meaning of law as not only

democracies; because in an oligarchy the decrees of dominant group in a council also carry the name of law (kings/tyrannies)反对伯利克里民主政治

Alcibiades: Pericles? definition of law is incorrect:

Force: law is therefore mere exercise of force?

–violence rather than law whether formally inscribed

Persuasion: laws should convince the people

–people should obey the laws because logically correct

●Lycurgus: law too brief instructions/explanations法律制定者

Declaration: merely declare what do/can’t do

–Law is a command or prohibition by political authority

–Obligations: those things which the people must do

–Prohibitions: the things which the people cannot do

●Aristotle :

Adult: use the law as regulatory to maintain order:

“we shall need laws to regulate the discipline of adults as well.”

“in fact, the whole life of the people generally; for the many are more amenable to compulsions

and punishment than to reason and to moral ideals”

Law Administration: mutual relations regulated by law

–“means the discrimination of what is just and what is unjust”

Plato (Laws): larger communities (national polities)

–no need of …formal? laws, just lived by custom and rules

–Aristotle (Politics): natural character of social living

2. Benefit of laws: The Greeks discussed who in society benefits

(Plato, Thrasymachus, Xenophon, Socrates, and Aristotle)

?Plato (Republic): dominant class make law for self

?Thrasymachus: government enacts law for itself

?Socrates: justice (law) is the interest of the people

?Aristotle (Ethics) :“we do not permit a man to rule, but the law [as a man tends to rule for his own benefit and thus becomes a tyrant]” - absolute and cruel

?Xenophon: (Ruler Pericles is speaking to Alcibiades):

–what is the relation between law and superior?s command?

–whether a political superior?s command is considered law?

3. Due course of law: The Greeks established standards of justice

(Objectivity, subjectivity, impartiality, voluntary, involuntary)

?Objectivity: obligation of court to hear both sides of dispute

– a feature of natural justice is to weigh all of the evidence

?Subjectivity(Trial): summary execution is like the violation of a woman

–no finding of man?s guilt according to a trial is outrageous

?Impartiality: decisions based on objective criteria (favoritism)

–rather than on the basis of bias, prejudice, preferring the benefit to one person over another for improper reasons

?Severity: voluntary and involuntary wrongs are distinct

–act of greater evil=greater punishment; an act of lesser evil=less

4. Goals of punishment: The Greeks set ideals of a criminal justice system (Correct behaviour, family and victim, discourage others, repayment) Primitive: instinctive, unreflecting, a victim?s feelings

–victim, family, society all respond with sorrow, outrage, fear Civilized: calm reflection when deciding punishment

–Western thought: objective reasons of policy justify decisions Punishment: types & goals of society?s corrective action:

?Corrective: force the wrongdoer to mend his bad ways

–Rehabilitation: individual can be redeemed to be a good citizen ?Deterrent: discourage other people from imitating him

–Warning: society watches a guilty man paying price for crimes ?Retribution: for repayment of the wrong committed

–Revenge: family or victim gets satisfaction through punishment

5. Western jurisprudence: The Romans made many contributions to the law

(The code, legal science, legal theory, lawyers, law professors, law schools) ●The code: Rome studied Greek laws (Twelve Tables)

●Legal Science: Romans developed jurisprudence

●Roman Theory of Natural Law: Cicero

Reason: is what nature tells us is right and wrong

Law: is understanding by reason right and wrong

Justice: origin is found in law so is a natural force

Injustice: standard by which right/wrong measured

Natural: wrong don?t become law only written down

True Law: good, universal, eternal, unchangeable

●Lawyers: Rome had the first legal professionals

●Law School: Cicero wrote textbooks for students

6. Sources of laws: The Romans has many sources of law in various forms(p52)

(The senate, magistrates, assemblies, people?s councils, norms an d customs)

1、罗马法的渊源和分类（1）习惯法。公元前450年以前，罗马国家法律的基本渊源为习惯法。（2）议会制定的法律。（3）元老院决议。（4）长官的告示。（5）皇帝敕令。主要包括：敕谕，敕裁，敕示，敕答。（6）具有法律解答权的法学家的解答与著述。

●Forms: Roman Law varied era to era:

Statutes (legislation)

Edicts (equitable rules)

Opinions (jurist laws)

Custom (social norms)

●Forums: Lawmaking bodies (statutes):

Assembly

People?s Council

Senate

Emperor

7. Three major events: In Roman history which changed world, then the law

(The Roman Empire splits, Christianity spreads, Rome is destroyed)

●Roman History: three events changed the world:

Division of the Roman Empire into East and West

Christianization of Empire-Emperor Charlemagne(查理曼大帝)

Destruction and Conquest of the Western Empire

8. Three areas of legal inequality: In Western legal history, three problem areas

(Slavery and prisoners, political hierarchy in government, private property)

Renaissance: equality in theory yet inequality in life areas: 1) political subordination, 2) slavery, 3) property

●Political Subordination: human nature requires it without authority there would be confusion & anarchy

government is natural, although no particular form of it no right force laws on other free peoples (colonialism) ●Slavery: ended Western Europe; still in Southern more efficient to have workers get benefits from work

slave trade grew - American mines (S) plantations (N)

men differ: physical labor or mental efforts (Aristotle)

Slave: Roman law and tradition slaves are property

Servant: master-servant relationship begins to grow

Service: duty to work hard-duty to train and pay wages

●Property: Inequality in Ownership of Goods Land

9.Theory of international relations: Although no coded law of nations, new ideas

(Ideas of independent kingdoms, independent kings, equality of kingdom)

●Independent Kingdoms: “the world contains a number of independent kingdoms which

recognize no superior”

●Independent Kings: “each king is an emperor in his own territory; Roman law for emperors

applies to kings”

●Equality of Kingdoms: “there is a coexistence and the equal plurality of political bodies; no one

above others”

10.The Canon Law(Church)教会法: Reformation ended Catholic Church controlling Europe

(New national governments, national churches, political interference of Church)

●Canon Law (Church): legislation must be …just?:

“…a law will be honorable, just, capable of being obeyed, in accordance with nature and in accord also with ancestral practice, adapted both to its time and to its place; necessary, useful and clear so there?s no misunderstanding, not framed for the advantage of any individual, but for the common benefit of the citizens.”

●Canon Law I: non-resistance to even wicked ruler--Kings may even exceed the limits of

customary law

●Canon Law II: conflict - Middle Ages legal theory---Kings had moral obligation to people and to

the laws

●Canon Law: (Greek - …rule?) church law (civil law today)---Legal Theory came from the

theologians, not lawyers

一、教会法的形成

教会是封建制度的社会支柱和国际中心，占有其势力范围内1/3的土地，在经济上、政治上和思想上形成巨大的统治力量。教会与世俗政权之间经常发生权力之争，但又互相配合，以维护封建统治。教会法就是在这一形势下，以基督教神学为思想基础，吸收了若干罗马法原则而形成的。

二、教会法的影响

（一）在婚姻家庭上，教会法与之相关的法律原则与制度长期制约着西方国家婚姻家庭立法的发展

（二）刑法上，教会法注重对犯人进行灵魂感化和道德矫正，主张通过刑罚给犯人自省的机会，这对近代刑法思想有很大影响

（三）债权法上，教会禁止“重利”行为，即禁止一切利用金钱借贷收取暴利。同时，宣誓履行债约的，不论合约是否在世俗法律界中有效，都必须履行

（四）诉讼上，教会法要求遵循“良心原则”，教会法院的法官拥有更多自由裁量权，后来发展为西方的“自由心证原则”

而教会法的纠问式诉讼对于大陆各国的刑事诉讼法影响更为明显

教会法以书面证据和证人证言取代了落后的诉讼证据制，对诉讼法发展也有重要影响

（五）国际法上，教会法在解决国家间关系如战争问题上所确立的某些原则，对后世也有一定影响

三、教会法的作用

教会法是西方法律传统的重要组成部分，与罗马法、日耳曼法一同构建了欧洲中世纪三大法律支柱

11.Courts of Equity: England developed a separate system with principles of fairness

(Issues included the circumstances, mindset of accused, flexibility and discretion)

England: a separate legal system of equity to law begins

“in every general rule of the law you must observe and keep equity”

“equity is justice that considers the particular circumstance of the deed, and which is also tempered with the sweetness of mercy”

“be not overmuch legal, for extreme legality does extreme wrong”

“equity rather follows the intent of the law than the words of law”

“impossible to make any general rule of law which does not fail in some case; in some cases it is good and necessary to leave words”

衡平法院（Court of Equity），又称大法官法院（Court of Chancery）。1474年，大法官首次以自己的名义发布命令，标志着完全独立的衡平法院正式诞生。

衡平法院，也叫良心法院（Court of Conscience）。法官凭良心判案。衡平法院不实行陪审

制，由大法官独自进行审理，自由裁量的余地很大，每个法官的判决也有很大的差别。因此有人说衡平法院的判决是由大法官脚的长短来决定的。衡平法官处理案件主要依据“衡平与良心”的原则（the rules of equity and good conscience），以后逐渐开始适用前衡平法官所创设的先例的原则，在衡平法院管辖的案件中，大量属于欺诈案件。

衡平法院虽然已经消亡，但衡平法的精神依然活着，衡平法已经成为英美法律研究与实务的不竭的源泉。在反避税中，美国税务局与法院越来越多地借助于衡平法的原理原则来防止税收规避，最常用的是“实质高于形式”（Substance over Form）规则，最早在Gregory v. Helvering 一案中所运用，效果很好，也有相当的说服力。此外，还运用“虚假交易规则”（Sham Transaction Doctrine）等。

12.The International Legal System In Renaissance were the beginnings of new areas (International rights to travel, trade, trust treaties, ambassadors, embassies, nations)

Legal System: relations of states with one another increase:

Middle Ages: maritime law（海商法）, mercantile law（贸易法）, ambassadors, prisoners

16th Century: sovereign states, embassies, New World, Europe wars

●“peoples have the right to travel, trade peacefully, to settle, these are basic activities lawful in the

eyes of all mank ind; but others? lands are theirs, and war only with just cause”

●“law of war holds peace treaties with other nations are to be respected, and are binding even

when signed under duress”

●“there exists a third kind of law dealing with bodies politic, includ ing rules of embassies,

foreigners, tourist travel”

●“a law which all peoples and nations ought to observe; unity political, moral, mutual love,

mercy; universal community; states can?t stand alone; need help” Jesuit Suarez

13.Private Property laws: St. Thomas Aquinas in High Middle Ages said necessary

(Self-interest motivates, efficient and stable social order, less ownership conflicts)

●Private Property: is so necessary to human life

self-preservation: more concern than for common good

social order: own business; mass confusion otherwise

self-contentment: common ownership causes disputes

14.Private Property morals: St.Thomas Aquinas said private property morally justified

(Compensation for effort, rewards for work, supplying community, farm cultivation)

●Moral Obligation: share with others in necessity

community: hold material things for the common benefit

charity: the urgent necessity of some people is not theft

●Moral Justification: reasons private is legitimate

physical labor: a man?s time and eff ort should be paid

production of goods: supplies community so keeps profit

cultivation of farmland: feeds the others so keeps portion

compensation for expropriation: pay farmers a fair price

15.European law: In the Middle Ages included different historical legal influences:

(Customary law, Greek law, Roman law, German law, Canon (Church) law)

第一，古希腊法不是一个统一的法律体系，而是古希腊各城邦多种法律的组合。

第二，古希腊法多是具体规范的堆积，缺乏抽象的概括与分析，也未能形成比较系统成熟的成文法典。

第三，古希腊法具有浓厚的哲学基础。

第四，古希腊法中公法比私法发达。

第五，古希腊成文法出现较早。

●Roman Law: the supreme legal and political reason

Practical: fusion into native legal systems of the states

●Canon Law: (Greek - …rule?) church law (civil law today)

Legal Theory came from the theologians, not lawyers

●Gratian?s (Decretum): monk?s collections of rules (1140)

Natural Law: Important source medieval legal theory

Natural Law: accessible to man through reason

Greco-Roman tradition: God was an abstract theory

●Supreme Law: natural law above positive law

●Germanic Law: limits of customary law on ruler

German Kings must follow the ancient laws & customs

●Customs: the law wasn?t primarily made or created in the Middle Ages; but existed as part of the

national or local life: