全英外国法制史复习资料.doc

WESTERN LEGAL HISTORY: FINAL EXAMINATION STUDY GUIDESHORT 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 peoplePeople have the benefit of laws, so agree to respect themDisobedience of the law destroys the law and the stateJustice is a compromise: doing wrong or being wrongedPlato 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 possibleDominant class makes law for selfProper role of law is ensuring the general benefitAristotle 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 critically study different cities lawsThe laws must be adapted to different circumstances of peopleThe 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 communitiesMans nature desires the best life he can getMan is a “political animal”Cicero was a Roman philosopher, statesman, lawyer, political theorist, and Roman constitutionalist. He is widely considered one of Romes greatest orators and prose stylists. He is also considered as the ancient pioneer of the separation of powers into three separate branches of governmentLaw is the bond, agreement and partnership of men.The law is inseparable from the reason given of natureLaw is right reason in commanding and prohibitingThe natural social instinct is the source of law itselfl 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。l God is the highest good and the cause of all things.l Human law is the effort of reasoning from the eternal laws.l 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 LAWPositive law is the term generally used to describe man-made laws that is set by political superiors to political inferiors l 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 justiceLaw: 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 officials. 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 systemPolitical 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 lawEarly 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 kingRule 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 governmentSocial 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 citizenRulers 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”-CassiusTheory of Equality in the LawEquality Before the Law Personal Merit: proud feature of Athenian system which leads to honor and preferment in a societyAristotle (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 lawsDemosthenes (Dracon)Nature: our equality of birth by nature impels us to seek equality under the lawPlato (Menexenus)Theory of Criminal Law Intent Intent: relation of punishment to a persons 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 punishmentTheory of Due Process of Law Due Process: right to notice, be heard in an orderly proceeding Strongly favored regular, impartial, judicial proceedingsKelly (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 theres no misunderstanding, not framed for the advantage of any individual, but for the common benefit of the citizens.”Roman Law (Justinians Code) History of Law: Justinians Digest (Roman law) Roman law of 1000 yrs: basic law code for the world Justinians 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 peoples 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 submitSecularism and Sectarianism Government Secularism: government is separate from religion Individualism: person is focal point in religion & politicsMachiavellian 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。 l Pericles: laws are measures that the peoples 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。l 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 inscribedPersuasion: laws should convince the people people should obey the laws because logically correctl Lycurgus: law too brief instructions/explanations法律制定者Declaration: merely declare what do/cant 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 dol 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”l Plato (Laws): larger communities (national polities) no need of formal laws, just lived by custom and rules Aristotle (Politics): natural character of social living2. 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 superiors command? whether a political superiors 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 mans 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=less4. Goals of punishment: The Greeks set ideals of a criminal justice system(Correct behaviour, family and victim, discourage others, repayment)Primitive: instinctive, unreflecting, a victims feelings victim, family, society all respond with sorrow, outrage, fearCivilized: calm reflection when deciding punishment Western thought: objective reasons of policy justify decisionsPunishment: types & goals of societys 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 punishment5. Western jurisprudence: The Romans made many contributions to the law(The code, legal science, legal theory, lawyers, law professors, law schools)l The code: Rome studied Greek laws (Twelve Tables)l Legal Science: Romans developed jurisprudencel Roman Theory of Natural Law: CiceroReason: is what nature tells us is right and wrongLaw: is understanding by reason right and wrongJustice: origin is found in law so is a natural forceInjustice: standard by which right/wrong measuredNatural: wrong dont become law only written downTrue Law: good, universal, eternal, unchangeable l Lawyers: Rome had the first legal professionalsl Law School: Cicero wrote textbooks for students6. Sources of laws: The Romans has many sources of law in various forms(p52)(The senate, magistrates, assemblies, peoples councils, norms and 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。l Forms: Roman Law varied era to era:Statutes (legislation)Edicts (equitable rules)Opinions (jurist laws)Custom (social norms)l Forums: Lawmaking bodies (statutes):AssemblyPeoples CouncilSenate Emperor7. Three major events: In Roman history which changed world, then the law(The Roman Empire splits, Christianity spreads, Rome is destroyed)l Roman History: three events changed the world:Division of the Roman Empire into East and WestChristianization of Empire-Emperor Charlemagne(查理曼大帝)Destruction and Conquest of the Western Empire8. 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) propertyl 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)l Slavery: ended Western Europe; still in Southern more efficient to have