CJL 3038 Lecture Notes - Lecture 1: Procedural Law, Roman Law
22 May 2018
School
Course
Professor
Reading for this lecture:
6.1 "The Cheyenne Wax/' (including comments following)
Where do laws come from?
• Laws may find their first base in norms and customs
• Norm: standard or model
• Custom: usual practice or tradition
Primitive Legal Systems
• Built around emphasis on norms, customs and religion
o Typically found in hunting and gathering and simple agrarian societies
o Emphasis was on clan and extended families
o Laws are not written or codified
o No developed political system
▪ Leaders are kin leaders, councils of elders, chiefs, or religious leaders
▪ Courts are temporarily assembled
▪ No individual possessions, emphasis on the common good
▪ Feuds were between individuals and not an individual and the state
Some distinction between substantive and procedural laws
▪ Substantive: rights, duties and prohibitions concerning what is right, wrong, permissible
and impermissible
▪ Procedural: Rules regarding how substantive law is to be administered, enforced,
changed, and used in the mediation of disputes
Transitional Legal Systems
▪ Typically found in advanced agrarian and early industrial societies
▪ Why the change?
o Integration problems
▪ Education, economics, politics
▪ Clearer distinction between substantive and procedural laws
Transitional Legal Systems
Distinction between private and public law
▪ Public: structure of the government, duties and powers of officials, and relationship
between the individual and the state; affect society as a whole
▪ The source of the feud evolved from a feud between individuals to a feud between an
individual and the state
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