Editing Judiciary (section)

== History    ==
{{see also|Legal history}}

This is a more general overview of the development of the judiciary and judicial systems over the course of history.

=== Roman judiciary ===
{{see also|Roman law|Byzantine law}}

==== Archaic Roman Law (650–264 BC) ====
The most important part was ''Ius Civile'' (Latin for "civil law"). This consisted of ''[[Mos maiorum|Mos Maiorum]]'' (Latin for "way of the ancestors") and ''Leges'' (Latin for "laws"). ''Mos Maiorum'' was a set of rules of conduct based on social norms created over the years by predecessors. In 451–449 BC, the ''Mos Maiorum'' was written down in the [[Twelve Tables]].<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=67, 68|oclc=299718438|date=25 June 2009}}</ref><ref>{{Cite book|title=Historical Introduction to the Study of Roman Law|last=Jolowicz|first=H.F.|year=1952|location=Cambridge|pages=108}}</ref><ref>Crawford, M.H. 'Twelve Tables' in Simon Hornblower, Antony Spawforth, and Esther Eidinow (eds.) ''Oxford Classical Dictionary'' (4th ed.)</ref> ''L' were rules set by the leaders, first the kings, later the popular assembly during the Republic. In these early years, the legal process consisted of two phases. The first phase, ''In Iure'', was the judicial process. One would go to the head of the judicial system (at first the priests as law was part of religion) who would look at the applicable rules to the case. Parties in the case could be assisted by jurists.<ref>{{Cite book|title=De Oratore|last=Cicero, Marcus Tullius|date=2011|publisher=Cambridge University Press|isbn=9780521593601|oclc=781329456}}</ref> Then the second phase would start, the ''Apud Iudicem''. The case would be put before the judges, which were normal Roman citizens in an uneven number. No experience was required as the applicable rules were already selected. They would merely have to judge the case.<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=69–75, 92–93|oclc=299718438|date=25 June 2009}}</ref>

==== Pre-classical Roman Law (264–27 BC) ====
The most important change in this period was the shift from priest to [[praetor]] as the head of the judicial system. The praetor would also make an [[Praetor's Edict|edict]] in which he would declare new laws or principles for the year he was elected. This edict is also known as praetorian law.<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=85–86|oclc=299718438|date=25 June 2009}}</ref><ref>{{Cite book|title=History of Roman Legal Science|last=Schulz|first=Fritz|publisher=Oxford University|year=1953|location=Oxford|pages=53}}</ref>

==== Principate (27 BC – 284 AD) ====
The [[Principate]] is the first part of the Roman Empire, which started with the reign of [[Augustus]]. This time period is also known as the "classical era of Roman Law" In this era, the praetor's edict was now known as ''edictum perpetuum'' which were all the edicts collected in one edict by [[Hadrian]]. Also, a new judicial process came up: ''cognitio extraordinaria'' (Latin for "extraordinary process").<ref>{{cite book |title=European legal history: a cultural and political perspective|last=Lesaffer |first = Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, England |pages=105–106 |oclc=299718438|date=25 June 2009 }}</ref><ref>{{cite web |url=https://www.britannica.com/topic/Roman-legal-procedure#ref1109518 |title=Roman Legal Procedure |date=3 May 2019 |website=Encyclopaedia Britannica |access-date=16 May 2019 |archive-date=27 May 2019 |archive-url=https://web.archive.org/web/20190527221240/https://www.britannica.com/topic/Roman-legal-procedure#ref1109518 |url-status=live }}</ref> This came into being due to the largess of the empire. This process only had one phase, where the case was presented to a professional judge who was a representative of the emperor. Appeal was possible to the immediate superior.

During this time period, legal experts started to come up. They studied the law and were advisors to the emperor. They also were allowed to give legal advice on behalf of the emperor.<ref>{{cite journal|date=2 November 2016|editor1-last=du Plessis|editor1-first=Paul J. |editor2-last=Ando|editor2-first=Clifford|editor3-last=Tuori|editor3-first=Kaius |title=The Oxford Handbook of Roman Law and Society |journal=Oxford Handbooks Online|page=153|doi=10.1093/oxfordhb/9780198728689.001.0001|isbn=9780198728689 }}</ref>

[[File:Corpus iuris ciuilis lugdvni 1607.jpg|thumb|''Corpus Iuris Civilis'', 1607]]

==== Dominate (284–565 AD) ====
This era is also known as the "post-classical era of Roman law". The most important legal event during this era was the Codification by Justinianus: the [[Corpus Juris Civilis|Corpus Iuris Civilis]].<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=109–113|oclc=299718438|date=25 June 2009}}</ref> This contained all Roman Law. It was both a collection of the work of the legal experts and commentary on it, and a collection of new laws. The ''Corpus Iuris Civilis'' consisted of four parts:

# ''Institutiones'': This was an introduction and a summary of Roman law.
# ''Digesta/Pandectae'': This was the collection of the edicts.
# ''Codex'': This contained all the laws of the emperors.
# ''Novellae'': This contained all new laws created.

=== Middle Ages ===
{{see also|Canon law of the Catholic Church}}

During the late Middle Ages, education started to grow. First education was limited to the monasteries and abbeys, but expanded to cathedrals and schools in the city in the 11th century, eventually creating universities.<ref>{{Cite book|title=Worlds of Medieval Europe|last=Backman|first=C.R.|publisher=Oxford University Press|year=2014|pages=232–237, 247–252}}</ref> The universities had five faculties: arts, medicine, theology, canon law and ''Ius Civile'', or civil law. Canon law, or ecclesiastical law are laws created by the Pope, head of the Roman Catholic Church.  The last form was also called secular law, or Roman law. It was mainly based on the ''[[Corpus Juris Civilis|Corpus Iuris Civilis]],'' which had been rediscovered in 1070. Roman law was mainly used for "worldly" affairs, while canon law was used for questions related to the church.<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=248–252|oclc=299718438|date=25 June 2009}}</ref>

The period starting in the 11th century with the discovery of the ''Corpus Iuris Civilis'' is also called the [[Scholasticism|Scholastics]], which can be divided in the early and late scholastics. It is characterised with the renewed interest in the old texts.

==== ''Ius Civile'' ====
===== Early scholastics (1070–1263) =====
The rediscovery of the Digesta from the ''Corpus Iuris Civilis'' led the university of Bologna to start teaching Roman law.<ref>{{Cite book |title=European legal history: a cultural and political perspective |last=Lesaffer, Randall |translator=Arriens, Jan |isbn=9780521877985 |location=Cambridge, UK |pages=252–254 |oclc=299718438 |date=25 June 2009}}</ref> Professors at the university were asked to research the Roman laws and advise the Emperor and the Pope with regards to the old laws. This led to the [[Glossator]]s to start translating and recreating the ''Corpus Iuris Civilis'' and create literature around it:
* ''Glossae'': translations of the old Roman laws
* ''Summae'': summaries
* ''Brocardica'': short sentences that made the old laws easier to remember, a sort of mnemonic
* ''Quaestio Disputata'' (''sic et non''): a dialectic method of seeking the argument and refute it.<ref>{{Cite book |title=Introduction to Reformed Scholasticism |last=van Asselt, Willem J. |others=Pleizier, Theo., Rouwendal, P. L. (Pieter Lourens), 1973–, Wisse, Maarten, 1973– |date=April 2011 |isbn=9781601783196 |location=Grand Rapids, Mich.}}</ref>

Accursius wrote the ''[[Glossa ordinaria (Accursius)|Glossa Ordinaria]]'' in 1263, ending the early scholastics.<ref>{{Cite book |title=European legal history: a cultural and political perspective |last=Lesaffer, Randall |translator=Arriens, Jan |isbn=9780521877985 |location=Cambridge, UK |pages=254–257 |oclc=299718438 |date=25 June 2009}}</ref>

===== Late scholastics (1263–1453) =====
The successors of the Glossators were the [[Postglossator|Post-Glossators]] or Commentators. They looked at a subject in a logical and systematic way by writing comments with the texts, treatises and ''consilia'', which are advises given according to the old Roman law.<ref>{{Cite book |title=European legal history: a cultural and political perspective |last=Lesaffer, Randall |translator=Arriens, Jan |isbn=9780521877985 |location=Cambridge, UK |pages=257–261 |oclc=299718438 |date=25 June 2009}}</ref><ref>{{Cite journal |last=Skyrms |first=J.F. |date=1980 |title=Commentators on The Roman Law |journal=Books at Iowa |volume=32 |pages=3–14 |doi=10.17077/0006-7474.1414 |doi-access=free}}</ref>

==== Canon Law ====
[[File:Graciano.jpg|thumb|203x203px|Gratian]]

===== Early Scholastics (1070–1234) =====
Canon law knows a few forms of laws: the ''canones'', decisions made by Councils, and the ''decreta'', decisions made by the Popes. The monk Gratian, one of the well-known [[decretist]]s, started to organise all of the church law, which is now known as the {{lang|la|[[Decretum Gratiani]]}}, or simply as ''Decretum''. It forms the first part of the collection of six legal texts, which together became known as the ''[[Corpus Juris Canonici]]''. It was used by [[canonist]]s of the [[Roman Catholic Church]] until Pentecost (19 May) 1918, when a revised ''[[1917 Code of Canon Law|Code of Canon Law]]'' (''Codex Iuris Canonici'') promulgated by [[Pope Benedict XV]] on 27 May 1917 obtained legal force.<ref>{{Citation |title=Benedict XV, Pope|doi = 10.1163/1877-5888_rpp_sim_01749}}</ref><ref>{{Cite book|title=Worlds of Medieval Europe|last=Backman|first=C.R.|publisher=Oxford University Press|year=2014|pages=237–241}}</ref><ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=261–265|oclc=299718438|date=25 June 2009}}</ref>

===== Late Scholastics (1234–1453) =====
The [[Decretalist]]s, like the post-glossators for ''Ius Civile'', started to write treatises, comments and advises with the texts.<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=265|oclc=299718438|date=25 June 2009}}</ref><ref>{{Cite book|title=The Eucharist in Medieval Canon Law|last=Izbicki|first=T.M.|publisher=Cambridge University Press|year=2015|isbn=9781107124417|pages=xv}}</ref>

==== Ius Commune ====
Around the 15th century, a process of reception and acculturation started with both laws. The final product was known as ''[[Jus commune|Ius Commune]]''. It was a combination of canon law, which represented the common norms and principles, and Roman law, which were the actual rules and terms. It meant the creation of more legal texts and books and a more systematic way of going through the legal process.<ref>{{Cite book|title=Church and Roman law|last=Dębiński, Antoni|date=2010|publisher=Wydawnictwo KUL|isbn=9788377020128|location=Lublin|pages=82–96}}</ref> In the new legal process, appeal was possible. The process would be partially [[Inquisitorial system|inquisitorial]], where the judge would actively investigate all the evidence before him, but also partially [[Adversarial system|adversarial]], where both parties are responsible for finding the evidence to convince the judge.<ref>{{Cite book|title=European legal history: a cultural and political perspective|last=Lesaffer, Randall|translator=Arriens, Jan |isbn=9780521877985|location=Cambridge, UK|pages=265–266, 269–274|oclc=299718438|date=25 June 2009}}</ref>

[[File:JMR-Memphis1.jpg|thumb|[[Lady Justice]] (Latin: ''Justicia''), symbol of the judiciary.<ref>Hamilton, Marci.  ''[https://books.google.com/books?id=Ox4_vqFCjcEC&pg=PA296 God vs. the Gavel]'', p. 296 (Cambridge University Press 2005): "The symbol of the judicial system, seen in courtrooms throughout the United States, is blindfolded Lady Justice."</ref><ref>Fabri, Marco.  ''[https://books.google.com/books?id=AwwH0F8iC9QC&pg=PA137 The challenge of change for judicial systems]'', p, 137 (IOS Press 2000): "the judicial system is intended to be apolitical, its symbol being that of a blindfolded Lady Justice holding balanced scales."</ref> Statue at Shelby County Courthouse, Memphis, Tennessee]]
After the [[French Revolution]], lawmakers stopped interpretation of law by judges, and the legislature was the only body permitted to interpret the law; this prohibition was later overturned by the [[Napoleonic Code]].<ref>Cappelletti, Mauro et al.  ''[https://books.google.com/books?id=gC2sAAAAIAAJ&pg=PA150 The Italian Legal System]'', p. 150 (Stanford University Press 1967).</ref>