History of the right

The history of the right is a section of the Histoire which is also useful for the experts of the Droit.

For the Lawyer S , the history of the right especially aims developing Connaissance S on the development of the Norme S currently in force, and thus at facilitating their comprehension and their range, by the knowledge of the Esprit of the Loi.

For the Historian S, on the other hand, the history of the right is integrated into a broader objective of Connaissance of the old companies. The Droit appears to be an good indicator of the Norme S which structure a company in a Temps given insofar as it tends to regulate a big part of the Interaction S between the individuals within a company, but also of various social groups or different State S between them.

One can distinguish several Objet S from studies for the history of the right, to which various types of sources and various approaches correspond historical S.

Habits, the codes and the Institution S

The most commonplace approach of the history of the right consists in studying the explicit forms of this one. It is mainly a question of establishing and of studying the texts expressing the legal standards: code S (the such Code of Justinien), habits, collections of Law S (registers). These texts can cover with very diverse material realities according to the period considered: the Loi S did not always have the abstract organization and the general formulation which they have today. The legal texts are sometimes oral collections of Tradition S (Coutume of Beauvais). Moreover, the laws can be integrated into texts of other natures, religious for example; thus the books of the Old Testament devoted to the legal regulations (Numbers, Deutéronome) are mingled with accounts Mythique S on the origins with the man and with prophetic books.

Starting from the texts, the historian of the right can seek to describe and analyze, when they exist, the Institution S charged to apply the expressed Norme S. These Institution S is then considered according to their theoretical operation and not according to their effective practice.

This approach presents a obvious Intérêt for the Connaissance of the old companies. It is however necessary to take care not to regard the legal texts as Norme S strictly observed and known of all.

Doctrines and theories of the right

The historian of the right also has reflexive texts on the concept even of Droit or Justice. He can then study the legal schools ( e.g. natural Right, reformers of the criminal Law to the 18th century) concurrent and their source S Philosophique S.

XVIe and XVIIe centuries

The language employed for the right is a very important element. The Latin remained during very a long time the language of the right. The appearance of national forms of right in Europe is related to the political and cultural unification of these countries. The French, for example, was still spoken very little before the Renaissance, and even relatively little still the day before the Révolution. The Ordonnance of Villers-Cotterêts (1539) devoted this language like language of the right and the administration in France (see Official language).

The efforts of coding of the laws are often accompanied by explanatory comments or Pédagogique S. It is what one calls today the Doctrine. In certain circumstances, the comment of the texts takes a considerable importance, at the point to replace the codes themselves for the practice of the Droit. Thus, the ordinance of 1673 on the ground trade (France, Louis XIV), which founds the Code of the trade, it is accompanied by a work which explains it, the interpreter, even supplements it (Jacques Savary, the perfect one negotiating ).

About the same time, the development of the maritime exchanges and the economic expansion of the States of the north of Europe pushed with the development of the first forms of International law, with Hugo Grotius.

Lights, French revolutions and American

The Age of Enlightenment saw an important reflection taking place on the natural Right and the concept of Citoyenneté. The first gropings in Europe on the questions of Constitution appeared with Sieyès. This last had indeed as an ambition, with the Constitution of year III (1795) to set up a Jurie constitutionnaire, which was the first project of a wide control of the constitutionality of the acts of the bodies of the State.

Always in France, the unification of the French Droit, already started by Louis XIV with the edict of Saint-Germain-in-Bush hammer (1679) continued with the Civil law and the criminal Law. The famous code Napoleon, actually entirely prepared by Cambacérès, is the illustration of the effort of coding already started by Louis XIV. The specificity of the Civil code French was its procedure of validation.

The fathers of American independence based the the United States on questions of taxation, and developed a right very sophisticated on the Brevet S and the Intellectual property (Thomas Jefferson), which remains a very strong component of the economic Culture in the United States. It is with the the United States that one finds the reflections most thorough on the right of the Intellectual property and the Droit of the businesses, in particular as regards professional Secrecy. A great part of the current negotiations to OMC rests on these Enjeu X.

It is at that time that separation between the two principal legal Systèmes takes place in the world:

the Civil law (legal system)
the Common law, in the Anglo-Saxon world.

Islam preserves a religious right, while the common law does not exist any more but in two States.

Contemporary time

It is only tardily that a clear distinction between doctrines and Jurisprudence takes place, so that the works of comments are often also collections of Décision S considered to be especially interesting. These documents constitute a first manner of approaching the effective practice of the Droit.

The appearance of the Substantive law to the 20th century under the influence of the Positivism, with the theory of the Normativisme of Hans Kelsen introducing the concept of Hierarchy of the standards, is also a very important stage in the evolution of the right.

Since the end of the Second world war, the multiplication of the laws, intrication in Europe between the Community legislation and the national rights generate problems of Legal security (concept of Sûreté in natural Right), which were the subject of two reports/ratios of the Council of State.

Procedures and practices

At least since the the Middle Ages, for the Europe, the Institution S charged to apply the Droit kept hard copies of their activity. The objective of these written documents was not to the first chief to inform the futures Historien S of the Droit, but rather to ensure perenniality and the Authenticité - in certain cases the Publicité - made Décision S. The Archives of the Juridiction S are, like all Archives for a historian, a very important source for the historians of the Droit.

The first approach implemented consists in comparing the legal texts with their effective application in the Juridiction S. the practice of the jurisdictions and the texts which they left also make it possible to know the designs of the Droit and the Justice in the experts of the Droit: in addition to the reference to the text of Law or the habit applied (sometimes in competition with another), waited are sometimes followed explanation of the Décision have regard with the particular case until each Jugement represents. It is still possible to treat these source S according to a quantitative approach. For example the frequency of the Contentieux, the nature of the litigations or the duration of the procedures will be examined.

The Archives of the Juridiction S finally make it possible to know the procedures used and the operation of the Tribunaux. One can thus study the methods of Financement legal Institution S or the respective share of the writing and oral examination in the procedures. The Statute, the nature and the means of the Preuve are a central theme in the Histoire as well of the Civil law as of the criminal Law. The documents reporting the Procès (minute S of the lawsuits preserved at Clerc's Office, memories, etc) constitute a central source for their study.

Actors, the justiciable ones, auxiliaries of justice

The files of the Juridiction S make it possible to approach the history of the right with the tools of the social history. The studies can relate to the formation or the social origin of the Juge S and the auxiliaries of justice (lawyer S, notary S, bailiffs, referees, etc) as on those of the justiciable ones. Many historians (A. Farge, F. Chauvaud, B. Garnot) in particular in France, chose the legal sources for better knowing social groups of which they are the only hard copies.

In a strict sense, the history of the right could cover only the first two approaches mentioned (Carbasse). Aujourd'hui still, the court orders nourish the right by the means of the Jurisprudence.

The historians (C. Ginzburg, S. Cerutti) seek to outdistance of an approach Téléologique Droit which would restore a continuous progression towards its current design. They insist then on the reversible character of the evolutions noted on the long life, and the built aspect of the choices between competitor modes of exercise of the Justice. From this point of view, the taking into account of the effective application of the Droit is an essential component of the history of this one.

History of justice in France

First steps

If they preserved their own habits , the Germanic people which invaded the Gaulle at the 5th century do not reflect fine with the legal uses of the Gallo-Romans. Thus coexisted of the laws different according to the ethnos group from the subjects (personality of the laws), system which fell gradually in disuse. As for the Church, it remained subjected to the canonical Droit. The inspiration of the cruel laws was different from the Roman law: it was necessary to substitute for the revenge on the victim or her family an financial equalization and to fix the tariff of it. The “evidence” recognized by the procedure was mystical and not rational: test by red iron or water (ordalies), legal duel.

As from the 10th century, the feudal lords adapt justice, imitated soon by the cities set up in communes. Royal justice is more in force only on the clean field of the king. The majority of the legal standards are then the fruit of the habit , it is necessary to prove the content by testimonys, and “who will remain an important source of the right until the Revolution”, writing Jean Bart. Ecclesiastical justice also benefits it from the obliteration of the royal capacity to extend its scope. It joins again at the 12th century with the Roman law. Until the 12th century, the lords returned justice in person, then they delegated their power of justice to officers. As from the 13th century, royal justice launches an offensive against justice seigneuriale ; on the 14th century, it forces the justice of the Church to be limited to the only spiritual field.

Royal authority

According to Jean Hearth, it is necessary to await Saint Louis, in the middle of the 13th century, so that a return starts towards the rational evidence, which was remained into force only in front of the ecclesiastical courts. It indeed tried to prohibit the legal duel on its field.

At the 14th century, the legists of the king invent the formula according to which “the king is source of any justice and fountain of justice”. That does not mean that the law enacted by the monarch is the only source of the right, but it becomes possible to appeal to the royal justice of the decisions of the court seigneuriale. The principle of prevention makes it possible royal justice to replace the judge seigneurial because of his inaction. Lastly, the royal cases, always more largely defined, are seen withdrawn from justice seigneuriale. Justice known as conceded, seigneuriale or ecclesiastic, will survive until the Revolution.

Royal justice is primarily exerted by officers, who are owners of their load; this venality of the offices (which goes up with Louis XI and especially François Ier) makes it possible to the king to feed his cases, from where plethora of magistrates. If the king thus delegates royal justice to courts, it preserves the right to judge itself a cause, withdrawn from normally qualified justice. Thus deputy justice constantly can, in theory, to leave the place to restrained justice. Royer notes the persistence of infra-legal under the Ancien Mode. The transactions related to not only the illegitimate pregnancies but also certain murders, whose reasons were considered to be honourable. Judicially repressed criminality was in fact very weak at the 18th century.

Delegated justice, in particular the Parliament of Paris, transformed into Contre-pouvoir as of the reign of Charles VI. Louis XIV will be able to stop the process of harassing well, but not it to stop, note Jean-Pierre Royer. While the delinquency blocks the courts, the crisis of the social link led to a certain judiciarisation of the company. Sometimes the judges seem the last rampart against corruption but also cruelty (international courts): the Human rights become a source of the national right and international. The reports/ratios of subordination between the policy and the right thus seem to be reversed.

Note and references

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