Western Legal Tradition Reading Guide

Following are the reading assignments from the syllabus together with a guide for each day's reading. Quiz questions will be based on the reading guide.

I. Church & State

A. Law and religion in antiquity

Monday, September 9

Course packet:

• Aldred, The Egyptians
• The Loyalist Instruction from the Sehetepibre Stela

History of the World:

• 64-84 (Egypt)

History of the World - read first

• Note the importance of the Nile to Egyptian civilization.
• When and how was Egypt unified?
• What are the names of the three principal divisions of Egyptian history?
• What is the relationship between Pharaoh and the gods?
• What was the Egyptian view of the afterlife?
• What factors worked against rapid change in Egypt?

Aldred, The Egyptians Ch. IX:

Read carefully Section I, The King

• What is the relationship between Pharaoh and the gods?
• What is the meaning of ma'at?

Sections 2-6 - Read for background. Note the roles of viziers and scribes. Ch. X

• What features of the physical environment were important in shaping Egyptian thought?
• What was the Egyptian view of change and progress?
• Note the further elaboration of the meaning of ma'at.

• uraeus: an asp (snake)
• cuneiform: a form of writing with a reed on a clay tablet
• shawabti: a small figure, representing a worker

The Loyalist Instruction

• What is the relationship between Pharaoh and the gods?
• What is the punishment for the rebel?
• Re: the sun-god, chief of the gods
• The Two Lands: Upper Egypt and Lower Egypt




September 12

Mesopotamia

History of the World, 48-63

• What two rivers define Mesopotamia?
• How were these rivers different from the Nile?
• What is cuneiform?
• Who were the three chief Mesopotamian gods?
• What was the Mesopotamian view of the afterlife?
• What is the source of Hammurabi's code?
• Who was Marduk?

Prologue to the Code of Hammurabi

• What is the relationship between Hammurabi and the gods?
• How did Hammurabi claim to have become king?
• Who is the god of justice? (see footnotes)
• What kinds of virtues does Hammurabi claim for himself?

Hebrews

History of the World, 102-114

• What factors differentiated the religion of the Hebrews from that of the Mesopotamians?
• What was the contribution of the prophets to law?

Exodus

• What reasons does God give for why the Israelites should obey him?
• Who is the author of the Ten Commandments?





B. The Romans and Early Christianity

Monday, September 16

History of the World

• 219-235 (Roman expansion)
• 245-250 (Roman religion)

Course Packet:

• Cicero - De Legibus

History of the World

History of the World

• Note the role of the plebeians (plebs) in Roman politics.
• What city was Rome's enemy in the Punic Wars? Where is it located?
• What problems at home were caused by Rome's success abroad?

NB: Cicero lived during the reign of Julius Caesar.

• What is the most striking feature of Roman religion according to Roberts?

Cicero, De Legibus

• Where does justice come from according to Cicero?
• How does he argue for this?
• What is more important in keeping men from doing evil: the inborn sense of justice or the fear of legal penalties?
• Why isn't everything that is just found in the customs or laws of nations?
• What does Cicero see as the shortcomings of self-interest as a standard for action?

Thursday, September 26

History of the World

• 251-265 (Judaism & Christianity)
• 266-289 (fall of Empire; Augustine)

Course Packet:

• Augustine, Letters

His tory of the World

• Why did the Jews come into conflict with the Romans?
• Why were the Romans more upset by the refusal of the Christians to worship Roman gods than by that of the Jews?
• What was Constantine's importance to Christianity?
• What popular belief about Christianity did Augustine seek to refute?

Handout

Augustine, City of God

• What is the origin of discord between the heavenly city and the earthly city?
• What is required for a city to have justice?
• What are the requirements of justice for the individual?

Bigongiari, The Political Ideas of St. Augustine

• What makes the state necessary according to Augustine?
• Why can the virtuous not form a state of their own?
• On what ground did Augustine defend coercion of heretics?

C. The Holy Roman Empire and Early Feudalism

Monday, September 23

History of the World

• 290-303; 379-406

Course packet:

• Institutes of Justinian, Preamble, Book I, I&II
• Laws of Alfred

History of the World

290-303:

• What was the "characteristic Germanic device for securing public order"?
• What was the effect of Justinian's religion on his policies?
• What is the difference between early Christian monasticism and the monasticism of St. Benedict?
• Why was Pope Gregory the Great important to England?

379-406:

• 379-393 - Read for background
• What was Danegeld? Who successfully resisted the Danes?
• What was Alfred's religion?
• Note the separation of eastern and western Christianity, pp. 396-397
• Who were the literate people in the early middle ages?
• What is feudalism?

Institutes of Justinian

• To whom are the Institutes directed?
• What religion does Justinian subscribe to?
• What is Justinian's definition of justice?
• What sources of Roman law does Justinian identify? How is each defined?

Laws of Alfred

• Who determines the punishment for breaking one's pledge? What happens if the prisoner
• escapes?
• What is the penalty for breaking church-sanctuary?
• What is church-asylum? What happens if the offender confesses during asylum?

D. Later Feudalism and Church-State Conflict

Thursday, September 26

History of the World

472-485

Course Packet:

• Constitutions of Clarendon
• Murder of Thomas Becket

History of the World 472-485

• What were the points of conflict between church and state during the papacy of Gregory VII?
• What was the Inquisition?
• Why did persecution not succeed in eradicating heresy?
• Wht is the "great paradox of the medieval church" according to Roberts?

Murder of Thomas Becket - read for background

Constitutions of Clarendon

• Which provisions limit the power of the church?
• Which provisions limit the power of the king?

Glossary:

• clerk: cleric
• tenement: landholding
• frankalmoign: holding of land in exchange for spiritual services
• seisin: possession
• villein: a peasant

Monday, September 30

Saladin Tithe

• For what purpose was the Saladin Tithe imposed?

Aquinas, Summa Theologica

• What is the last end of human life?
• What is Aquinas's definition of law?
• Why is the eternal law necessary?
• What is the first precept of natural law?
• In what respect is natural law changeable? In what respect unchangeable?
• What determines the validity of human law?

E. Protestant Reformation

Thursday, October 3 - Monday, October 7

History of the World

• 506-509, 518-526; 549-559

Course Packet:

• Act of Supremacy

Bolt, A Man for All Seasons

History of the World 506-509

• What was the purpose of the Crusades?

518-526

• Note founding of universities, p. 518
• From where did the Europeans recover classical learning?
• What was scholasticism?
• What changes were brought about by the invention of the printing press?

Man for All Seasons

• What is the King's problem?
• Why won't the Pope do what the king wants?
• What does the king initially ask More to do? How does More respond?
• Why does More resign?
• What is the oath that More is asked to take? Why does he refuse?
• How does Henry resolve his dispute with the Pope?
• Who has the most power in Henry's England?
• Who are the other contenders for power?
• Does the law have any power against the king?

Act of Supremacy of Henry VIII

• This is the Act referred to in the play.

Thursday, October 10 - MIDTERM

II. Criminal law and procedure

A. Ancient law

Monday, October 14

Course Packet:

• Book of the Dead
• Code of Hammurabi
• Exodus, Numbers, Leviticus

Book of the Dead

• To whom does the dead person address his denial of sins in the Book of the Dead?
• What positive things does the dead person claim to have done?

Glossary:

• Amon-Ra: The sun-god; chief Egyptian god. A combination of Amon (Amen), the god of air and wind, and Ra (Re), the sun-god.
• Thoth: the messenger, represented as a baboon.
• Osiris: god of the underworld
• Horus: son of Osiris, represented as a falcon.
• ziggurat: a temple
• An, Anu: sky-god of Uruk; chief of the gods.
• Enlil, Ellil: son of Anu.
• Lagash: a city in Mesopotamia.
• 1 mina = 60 shekels.

Exodus

• To what extent does punishment of the offender under the laws of Exodus vary with the status of the victim?
• What offenses may result in capital punishment?
• How are the laws regulating slaves different from those of Hammurabi?
• Compare the rules regarding the goring ox with those in Hammurabi.

Numbers

• What is the purpose of the city of refuge?

B. The Greeks

Thursday, October 17

Course Packet:

• Iliad

In The Oresteia:

• The Eumenides

History of the World

• 159-218

• Note political organization of the Greek city-state.
• Note the status of slaves and women in ancient Greece.
• What were the principal contributions of classical (5th cent. B.C.) Athens to Western culture?
• For what is Alexander famous?

Eumenides

• Who are the Furies?
• What is Orestes' crime?
• Who is to decide Orestes' guilt?
• What do the Furies claim will happen if he is acquitted?
• Why did the Furies not pursue Clytemnestra?
• What reason does Apollo give for favoring Orestes?
• What is Athena's reason for her vote?
• What promises does Athena make to the Furies?

Monday, October 21

In Trial and Death of Socrates

• Apology

• What is the accusation against Socrates?
• How does Socrates account for the charges?
• Why should one not act in fear of death according to Socrates?
• What penalties does Socrates suggest? Why?
• What penalty is actually imposed?

Thursday, October 24

In Trial and Death of Socrates

• Crito

• What arguments does Crito give for escaping the punishment?
• Does Socrates think his punishment is just?
• What reasons does he give for refusing to escape?

Monday, October 28

Plato, Gorgias, pp. 27-50

• In what sense do the rhetorician and tyrant lack power?
• Do they retain power in any other sense?
• Is power good for the person who has it in Plato's view?
• Why is punishment a good thing on Plato's view?

C. The Romans

Thursday , October 31-Monday, November 4

Course packet:

• Laws of the 12 Tables - Tables I-IV, VII
• Institutes of Justinian - Book IV, Obligations Arising from Wrongs

Laws of the Twelve Tables

• What was the procedure for dealing with debtors? What was the punishment?
• What were the rights of fathers? (Read the footnotes.)
• For what crimes could a person be executed?
• What special methods of execution are provided for?

Institutes of Justinian Book IV

• What factors affect the penalty for theft? What are the various penalties?
• Who, besides the owner, can bring an action for theft?
• In what cases may a person be liable for theft although he did not steal anything himself?
• What defenses to a charge of theft are mentioned?
• What factors affect the penalty for personal injury?
• Who is eligible to receive compensation?

Glossary:

• ex contractu: out of contract
• ex maleficio: out of wrongs
• usucaption: acquisition of property through possession
• usufruct: the fruits, or what is produced by a piece of property

D. The Saxons

Thursday, November 7

Course Packet:

• Laws of Aethelberht
• Laws of Alfred
• Laws of Aethelstan

Laws of Aethelbehrt

• How do the laws reflect the differential value of persons?
• Who is the most valuable? Who the least?
• What crime results in the highest penalty?
• How do the laws reflect the status of women and servants?

Laws of Alfred

• What may a person do against his enemies without enlisting the aid of the government?
• What are the limits on this?
• What reduces the penalty for a criminal offense?
• What increases it?
• How do the penalties for slaves differ from those for freemen?
• What kinds of alternatives to the money fine are specified in some laws?

Laws of Ethelstan

• How was the trial by ordeal carried out?
• What is the role of God in the ordeal?

Glossary

• mundbyrd - protection; amount to be paid for violation of protection or guardianship
• wergeld - the value of a person in money
• fedesl - perhaps a tax collector
• laet - probably a person intermediate between freeman and slave
• sceatt - 1/20 of a shilling
• morning gift - gift by bridegroom to bride after the wedding
• oath - an oath of loyalty
• pledge - a promise
• reeve - a local official

E. Emergence of Modern Law

Monday, November 11

Course Packet:

• Assize of Clarendon
• Bushell's Case
• U.S. Constitution, Amendment VIII

Assize of Clarendon

• Who besides the king is instrumental in issuing the Assize?
• What procedure is to be followed in bringing accusations?
• What pretrial procedures are provided for?
• What are the trial procedures?
• How is the summons procedure changed from Saxon law?
• Note the king's claims of exclusive jurisdiction (power to dispense justice).
• What provisions are made for making people responsible for the behavior of others?
• How does the reputation of the accused affect his fate?
• What happens if the person confesses?
• What if the person is acquitted?

Glossary

• chattels - goods
• gaol - jail
• soke - local court of a lord
• borough - town
• frankpledge, freepledge - guarantee of good behavior of a group of ten (similar to tithing)
• "have no law" - not permitted a trial

Bushell's Case

• What is the prisoner charged with?
• What is the Court's argument why the defendants should not be convicted?
• What is the role of the judge according to the court? role of the jury?
• What are the requirements for the composition of the jury?

III. Property

Thursday, November 14

Course Packet:

• 12 tables - Tables V, VI, VIII-XII
• Institutes of Justinian - Book II - Of Things

Twelve Tables - V, VI, VIII-XII

• Compare the acquisition of immoveable property and of women.
• What limits are placed on property ownership?
• What is the purpose of the limits on funerals?
• Note the law prohibiting patricians from marrying plebeians.

Institutes of Justinian - Book II

• What things belong to everyone in common?
• What things belong to no one?
• In what ways can people come to own property? (See sections I and VI)
• What factors affect claims of ownership when the property of two persons is mixed?
• What is a "servitude of an immoveable"?
• What is the difference between "use" and "usufruct"?

Monday, November 18

Course Packet:

• Preface to Estates in Land & Future Interests

• What three modern property notions are traced by the author to tenure by knight service?
• What was the "infeudation" of England? What is "subinfeudation"?
• How does the author account for the beginning of the heritability of property?
• What is a relief?
• What is escheat?
• What is livery of seisin?
• What is wardship?
• What is the feudal incident of marriage?

Thursday, November 21

Course Packet:

• Locke - Ch. V

• How do property rights arise?
• What are the limits on how much property one may acquire in the state of nature?
• What types of property are not so limited?
• On what basis does Locke say people have agreed to an unequal distribution of wealth?

IV. State Power and the Rule of Law

A. King & Parliament

Monday, November 25

Course Packet:

• Assize of the Forest
• Magna Carta

Assize of the Forest

• What limits are placed on the hunting of animals in the royal forest?
• What limits are placed on the cutting of trees?

Glossary:

• vert: woods
• agist: grazing by livestock
• lawing of mastiffs: cutting off three claws to disable for hunting
• essarts: cover for animals
• purprestres: encroachments

Magna Carta

• What limits are placed on reliefs, wardship, and marriage?
• How are the aids to the king limited?
• What limits are placed on treatment of debtors?
• What limits are placed on fines (amercements)?
• Note #39 concerning judgment by peers.
• How is the law of the forest changed?
• How is the power of the king limited for the future?

Glossary:

• distrain: seize goods pending legal action
• serjeancy: petty service
• Disafforested: removed from the royal forest
• kydell: fish-weir
• disseised: dispossessed

B. Social Contract Theory

Monday, December 2

Course packet

• Hobbes
• English Bill of Rights

Hobbes

• In what respects are all men equal?
• What does he think it would be like "during the time men live without a common power to keep them all in awe"?
• Why is there no justice when there is no government?
• What rights do people have when there is no government?
• What are the "laws of nature"? What rights are not alienable?
• What is the source of the authority of the sovereign?
• What is Hobbes's criticism of the ideas of liberty obtained from the Greeks and Romans?
• What limits the liberty of subjects?

English Bill of Rights

• What are the chief complaints against James II?
• Who has convened the meeting at which these acts are declared illegal?
• On what basis are they declared illegal?
• On what basis is William declared King? Who makes the declaration?

Glossary:

• tallage - a tax
• benevolence - a tax
• divers - various
• writ of habeas corpus - an order requiring a showing of cause to detain a prisoner
• martial law - military law
• papists - Catholics
• popish - Catholic
• prelate - religious official

Thursday, December 5

Locke, ch. 1, 8, 9

• What state are all men naturally in?
• What is the law of nature?
• Who has the right to punish in the state of nature?
• What are the limits on punishment in the state of nature?
• What problems in the state of nature make the establishment of government desirable?
• How do people leave the state of nature and come under the jurisdiction of government?
• What establishes consent to be governed according to Locke?