Four Asian Tigers

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https://en.wikipedia.org/wiki/Four_Asian_Tigers 

 

Four Asian Tigers
The Four Asian Tigers: Hong Kong, Singapore, South Korea and Taiwan
Chinese name
Traditional Chinese	亞洲四小龍
Simplified Chinese	亚洲四小龙
Literal meaning	Asia's Four Little Dragons

Transcriptions
Korean name
Hangul	아시아의 네 마리 용
Hanja	아시아의 네 마리 龍
Literal meaning	Asia's four dragons

Transcriptions
Malay name
Malay	Empat Harimau Asia
Tamil name
Tamil	நான்கு ஆசியப் புலிகள்

 

Not to be confused with Tiger Cub Economies.

The Four Asian Tigers (also known as the Four Asian Dragons or Four Little Dragons in Chinese and Korean) refer to the economies of Hong Kong, Singapore, South Korea and Taiwan. Between the early 1960s and 1990s, they underwent rapid industrialization and maintained exceptionally high growth rates of more than 7 percent a year.

By the early 21st century, all had developed into high-income economies, specializing in areas of competitive advantage. Hong Kong and Singapore have become leading international financial centres, whereas South Korea and Taiwan are leaders in manufacturing electronic components and devices. Their economic success have served as role models for many developing countries, especially the Tiger Cub Economies of southeast Asia.

In 1993, the World Bank report The East Asian Miracle credited neoliberal policies to have caused the economic boom, including the maintenance of export-oriented policies, low taxes, and minimal welfare states. Institutional analyses also state some state intervention was involved. However, others argued that industrial policy and state intervention had a much greater influence than the World Bank report suggested.

Overview

Growth in per capita GDP in the tiger economies between 1960 and 2014

 

Prior to the 1997 Asian financial crisis, the growth of the Four Asian Tiger economies (commonly referred to as "the Asian Miracle") has been attributed to export oriented policies and strong development policies. Unique to these economies were the sustained rapid growth and high levels of equal income distribution. A World Bank report suggests two development policies among others as sources for the Asian miracle: factor accumulation and macroeconomic management.

The Hong Kong economy underwent industrialization with the development of a textile industry in the 1950s. By the 1960s, manufacturing in the British colony had expanded and diversified to include clothing, electronics, and plastics for export orientation. Following Singapore's independence, the Economic Development Board formulated and implemented national economic strategies to promote the country's manufacturing sector. Industrial estates were set up and foreign investment was attracted to the country with tax incentives. Meanwhile, Taiwan and South Korea began to industrialize in the mid-1960s with heavy government involvement including initiatives and policies. Both countries pursued export-oriented industrialization as in Hong Kong and Singapore. The four countries were inspired by Japan's evident success, and they collectively pursued the same goal by investing in the same categories: infrastructure and education. They also benefited from foreign trade advantages that sets them apart from other countries, most significantly economic support from the United States; part of this is manifested in the proliferation of American electronic products in common households of the Four Tigers.

By the end of the 1960s, levels in physical and human capital in the four economies far exceeded other countries at similar levels of development. This subsequently led to a rapid growth in per capita income levels. While high investments were essential to their economic growth, the role of human capital was also important. Education in particular is cited as playing a major role in the Asian economic miracle. The levels of education enrollment in the Four Asian Tigers were higher than predicted given their level of income. By 1965, all four nations had achieved universal primary education. South Korea in particular had achieved a secondary education enrollment rate of 88% by 1987. There was also a notable decrease in the gap between male and female enrollments during the Asian miracle. Overall these advances in education allowed for high levels of literacy and cognitive skills. 

Worlds regions by total wealth (in trillions USD), 2018

 

The creation of stable macroeconomic environments was the foundation upon which the Asian miracle was built. Each of the Four Asian Tiger states managed, to various degrees of success, three variables in: budget deficits, external debt and exchange rates. Each Tiger nation's budget deficits were kept within the limits of their financial limits, as to not destabilize the macro-economy. South Korea in particular had deficits lower than the OECD average in the 1980s. External debt was non-existent for Hong Kong, Singapore and Taiwan, as they did not borrow from abroad. Although South Korea was the exception to this - its debt to GNP ratio was quite high during the period 1980-1985, it was sustained by the country’s high level of exports. Exchange rates in the Four Asian Tiger nations had been changed from long-term fixed rate regimes to fixed-but-adjustable rate regimes with the occasional steep devaluation of managed floating rate regimes. This active exchange rate management allowed the Four Tiger economies to avoid exchange rate appreciation and maintain a stable real exchange rate.

Export policies have been the de facto reason for the rise of these Four Asian Tiger economies. The approach taken has been different among the four nations. Hong Kong, and Singapore introduced trade regimes that were neoliberal in nature and encouraged free trade, while South Korea and Taiwan adopted mixed regimes that accommodated their own export industries. In Hong Kong and Singapore, due to small domestic markets, domestic prices were linked to international prices. South Korea and Taiwan introduced export incentives for the traded-goods sector. The governments of Singapore, South Korea and Taiwan also worked to promote specific exporting industries, which were termed as an export push strategy. All these policies helped these four nations to achieve a growth averaging 7.5% each year for three decades and as such they achieved developed country status.

Dani Rodrik, economist at the John F. Kennedy School of Government at Harvard University, has in a number of studies argued that state intervention was important in the East Asian growth miracle. He has argued "it is impossible to understand the East Asian growth miracle without appreciating the important role that government policy played in stimulating private investment".

1997 Asian financial crisis

The Tiger economies experienced a setback in the 1997 Asian financial crisis. Hong Kong came under intense speculative attacks against its stock market and currency necessitating unprecedented market interventions by the state Hong Kong Monetary Authority. South Korea was hit the hardest as its foreign debt burdens swelled resulting in its currency falling between 35–50%. By the beginning of 1997, the stock market in Hong Kong, Singapore, and South Korea also saw losses of at least 60% in dollar terms. Singapore and Taiwan were relatively unscathed. The Four Asian Tigers recovered from the 1997 crisis faster than other countries due to various economic advantages including their high savings rate (except South Korea) and their openness to trade.

2008 financial crisis

The export-oriented tiger economies, which benefited from American consumption, were hit hard by the financial crisis of 2007–08. By the fourth quarter of 2008, the GDP of all four nations fell by an average annualized rate of around 15%. Exports also fell by a 50% annualized rate. Weak domestic demand also affected the recovery of these economies. In 2008, retail sales fell 3% in Hong Kong, 6% in Singapore and 11% in Taiwan.

As the world recovered from the financial crisis, the Four Asian Tiger economies have also rebounded strongly. This is due in no small part to each country's government fiscal stimulus measures. These fiscal packages accounted for more than 4% of each country's GDP in 2009. Another reason for the strong bounce back is the modest corporate and household debt in these four nations.

A recent article published in Applied Economics Letters by financial economist Mete Feridun of University of Greenwich Business School and his international colleagues investigates the causal relationship between financial development and economic growth for Thailand, Indonesia, Malaysia, the Philippines, China, India and Singapore for the period between 1979 and 2009, using Johansen cointegration tests and vector error correction models. The results suggest that in the case of Indonesia, Singapore, the Philippines, China and India financial development leads to economic growth, whereas in the case of Thailand there exists a bidirectional causality between these variables. The results further suggest that in the case of Malaysia, financial development does not seem to cause economic growth.

Gross domestic product (GDP)

In 2018, the combined economy of the Four Asian Tigers constituted 3.46% of the world's economy with a total Gross Domestic Product (GDP) of 2,932 billion US dollars. The GDP in Hong Kong, Singapore, South Korea and Taiwan was worth 363.03 billion, 361.1 billion, 1,619.42 billion and 589.39 billion US dollars respectively in 2018, which represented 0.428%, 0.426%, 1.911% and 0.696% of the world economy. Together, their combined economy surpassed the United Kingdom's GDP of 3.34% of the world's economy some time in the mid 2010s.

• Skylines of the Four Tigers
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  Hong Kong
  
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  Singapore
  
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  Seoul, South Korea
  
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  Taipei, Taiwan
  

Education and technology

These four countries had invested heavily in their infrastructure as well as in developing the intellectual abilities of their human talent, fostering and retaining their educated population to help further develop and improve their respective countries. This policy turned out to be so effective that by the late 20th century, all four countries had developed into advanced and high-income industrialized developed countries, developing many different areas of advanced technology that give them a tremendous competitive advantage in the world. For example, all four countries have become top level global education centers with Singapore, Taiwan, South Korea and Hong Kong high school students consistently outperforming all other countries in the world and achieving the highest top scores on international math and science exams such as the PISA exam and with Singaporean and Taiwanese students winning multiple gold medals every year consistently at the International Biology Olympiad, International Linguistics Olympiad, International Physics Olympiad, International Earth Science Olympiad, International Mathematical Olympiad and International Chemistry Olympiad.

Additionally, these four countries are home to some of the most prestigious top ranking universities in the world such as National Taiwan University, Seoul National University, National University of Singapore, Nanyang Technological University and University of Hong Kong, Faculty of Dentistry, which as of 2017, was ranked as the number one top dental school in the world. While Taiwan and South Korea invested in technological innovation and development, Hong Kong and Singapore also pursued a path of finances and both became world-leading international financial centers. Inspired in part by Japan's technological and economic success, two of the earliest countries to pursue a similar path of cutting edge science and technology development were Taiwan, Singapore and South Korea, which have both become advanced innovative world leaders in state of the art technologies including medical science, computer technology, biotechnology, space technology (manned spacecraft & robots), military technology stealth technology, robotics and information technology manufacturing. Taiwan, Singapore and South Korea achieved this by promoting technological innovation, research and development, and export-oriented industrialization which turned an initially post-World War 2 poor agricultural economy into two thriving economic and technological superpowers on the same competitive level as Japan and the United States.

Cultural basis

The role of Confucianism has been used to explain the success of the Four Asian Tigers. This conclusion is similar to the Protestant work ethic theory in the West promoted by German sociologist Max Weber in his book The Protestant Ethic and the Spirit of Capitalism. The culture of Confucianism is said to have been compatible with industrialization because it valued stability, hard work, discipline, and loyalty and respect towards authority figures. There is a significant influence of Confucianism on the corporate and political institutions of the Asian Tigers. Prime Minister of Singapore Lee Kuan Yew advocated Asian values as an alternative to the influence of Western culture in Asia. This theory was not without its critics. There was a lack of mainland Chinese economic success during the same time frame as the Four Tigers, and yet China was the birthplace of Confucianism. During the May Fourth Movement of 1919, Confucianism was blamed for China's inability to compete with Western powers.

In 1996, the economist Joseph Stiglitz pointed out that, ironically, "not that long ago, the Confucian heritage, with its emphasis on traditional values, was cited as an explanation for why these countries had not grown."

Asian values

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Asian_values 

 

The term Asian values is a political ideology that arose in the 1990s, which defined elements of society, culture, and history common to the nations of Southeast Asia and East Asia. It aimed to use commonalities – for example, the principles of collectivism or communitarianism – to unify people for their economic and social good and to create a pan-Asian identity. This contrasted with perceived European ideals of the universal rights of man. The concept was advocated by Mahathir Mohamad (Prime Minister of Malaysia, 1981–2003, 2018–2020), Lee Kuan Yew (Prime Minister of Singapore, 1959–1990), Park Chung Hee (President of South Korea, 1962–1979) and Shinzo Abe (Prime Minister of Japan, 2012–present) and as well as other Asian leaders.

The popularity of the concept slightly waned after the 1997 Asian financial crisis when at the time Asia lacked a coherent regional institutional mechanism to deal with such crises. A few months after the crisis, The ASEAN Plus Three (APT) was conceived in December 1997 with the convening of a summit among the leaders of ASEAN, China, Japan and South Korea. The APT Summit was institutionalised in 1999 when its leaders issued a joint statement at the 3rd APT Summit. The joint statement determined the main objectives, principles and further directions of APT countries' and resolved to strengthen and deepen cooperation at various levels and in various areas, particularly in economic, social, political and other fields.

Definition

Various definitions of Asian values have been put forth. Generally, the phrase alludes to influences by Confucianism – in particular, filial piety or loyalty towards the family, corporation, and nation; the forgoing of personal freedom for the sake of society's stability and prosperity; the pursuit of academic and technological excellence; and, a strong work ethic together with thrift.

Proponents of "Asian values" claim these values are more appropriate for the region than Western democracy with its emphasis on individual freedoms.

"Asian values" were codified and promoted in the Bangkok Declaration of 1993, which re-emphasized the principles of sovereignty, self-determination, and non-interference in civil and political rights. They included:

• Preference for social harmony;
• Concern with socio-economic prosperity and the collective well-being of the community;
• Loyalty and respect towards figures of authority;
• Preference for collectivism and communitarianism.

History

Asian values gained popularity in the People's Republic of China, Malaysia (under Mahathir Mohamad), Singapore (under Lee Kuan Yew), Indonesia and in Japan (perhaps as early as the pre World War II era). In the West, the study of Asian values was seen as a way to understand Asia and foster a closer relationship with the region.

Proponents in Malaysia claim the concept helped reconcile Islam, Confucianism and Hinduism and was unifying because it was different to the philosophy of the West, though the liberal nature of Hinduism evidently contradicts it. Lee maintained that more than economics or politics, a nation's culture would determine its fate. In Japan, a concept of "Ideals of the East" was embraced in some nationalist circles because it challenged the West and also because it offered the possibility of Japanese leadership in a new Asia. Some attribute the economic success of East and Southeast Asian nations in the 1960s to the 1980s to "Asian values"; a third-way, Asian political model that was an alternative to totalitarianism and liberal democracy. 

"Asian values" was also evident in the planning of the return of Hong Kong to China in 1997.

The popularity of the concept persisted. Some speculate it might have contributed to the religious, social, cultural and economic changes occurring in Asia in that time; for example, the Asian financial crisis and the collapse of the Suharto regime in Indonesia may have been successfully counteracted by liberal democracy. The absence of India, with its towering civilizational sweep over most of Asia, also made sure it didn't gain currency, since the concept lacked features of Indic culture solidly imprinted on most of Asia.

In 2006, Jusuf Kalla, the vice-president of Indonesia, linked Asian values with the proposed East Asian Free Trade Agreement and the East Asian Community arising from the East Asia Summit. He partly defended Asian values by placing emphasis on co-operation over competition.

"Asian values" continues to be discussed in academe with reference to the question of the universality of human rights (as opposed to a position of cultural relativism).

The authors of a study published in 2015 claimed that rice versus wheat agriculture explain differences in analytic thinking, "implicit individualism" and innovation between various Chinese provinces. Compared to wheat farming, rice farming is a labor-intensive practice that requires cooperation among many people. However, the results of the study are controversial due to very small sample sizes for some units of analysis (some samples were as small as fewer than ten individuals), questionable measurement instruments and model misspecification. Using an improved measure of individualism-collectivism, the authors of a replication study found that the conclusion of the 2015 article claiming to show evidence for the relationship between wheat versus rice farming was the result of faulty methodology.

Criticism

A number of criticisms of Asian values have been made. Kim Dae-jung (President of South Korea, 1998-2003), Amartya Kumar Sen (an Indian economist, philosopher, and Nobel laureate) and Yu Ying-shih (a Chinese-born American historian and sinologist) have argued that "Asian values" is doublespeak for suppressing "Western values" such as "freedom of speech" and "human rights". Randall Peerenboom noted that many scholars "are in general agreement that some Asian governments use the rhetoric of Asian values for self-serving ends."

However, a common countercriticism of the concept of Asian values is the perceived success of many Asian quasi-democratic societies such as the tiger economies of Taiwan, which was ruled under martial law from 1949 to 1987, Hong Kong under one country, two systems, South Korea under the leadership of Park Chung-hee which led to the Miracle on the Han River, the rapid development of Singapore under Lee Kuan Yew, which has been ruled by the People's Action Party since independence and also Japan's economic miracle under the 1955 System, where the Liberal Democratic Party has been the dominant Japanese party continuously in power since 1955, except for brief periods between 1993 and 1994, and again from 2009 to 2012.

Roman law

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Roman_law 

 

Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis (AD 529) ordered by Eastern Roman Emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law.

After the dissolution of the Western Roman Empire, the Roman law remained in effect in the Eastern Roman Empire. From the 7th century onward, the legal language in the East was Greek.

Roman law also denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany, Roman law practice remained in place longer under the Holy Roman Empire (963–1806). Roman law thus served as a basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia. English and Anglo-American common law were influenced also by Roman law, notably in their Latinate legal glossary (for example, stare decisis, culpa in contrahendo, pacta sunt servanda). Eastern Europe was also influenced by the jurisprudence of the Corpus Juris Civilis, especially in countries such as medieval Romania (Wallachia, Moldavia, and some other medieval provinces/historical regions) which created a new system, a mixture of Roman and local law. Also, Eastern European law was influenced by the "Farmer's Law" of the medieval Byzantine legal system.

Development

Before the Twelve Tables (754–449 BC), private law comprised the Roman civil law (ius civile Quiritium) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings". It is believed that Roman Law is rooted in the Etruscan religion, emphasizing ritual.

Twelve Tables

The first legal text is the Law of the Twelve Tables, dating from the mid-5th century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written in order to prevent magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens to copy the Laws of Solon; they also dispatched delegations to other Greek cities for like reason. In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws (decemviri legibus scribundis). While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted. In 450 BC, the decemviri produced the laws on ten tablets (tabulae), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly.

Modern scholars tend to challenge the accuracy of Roman historians. They generally do not believe that a second decemvirate ever took place. The decemvirate of 451 is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome. Furthermore, questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Roman historians believed. Instead, those scholars suggest, the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds. The original text of the Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Gauls in 387 BC.

The fragments which did survive show that it was not a law code in the modern sense. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.

Early law and jurisprudence

Many laws include Lex Canuleia (445 BC; which allowed the marriage—ius connubii—between patricians and plebeians), Leges Licinae Sextiae (367 BC; which made restrictions on possession of public lands—ager publicus—and also made sure that one of the consuls was plebeian), Lex Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC; verdicts of plebeian assemblies—plebiscita—now bind all people).

Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law. However, Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.

Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Flavius is said to have published around the year 300 BC the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active and legal treatises were written in larger numbers before the 2nd century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola who wrote a voluminous treatise on all aspects of the law, which was very influential in later times, and Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero. Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the principate in 27 BC.

Pre-classical period

In the period between about 201 to 27 BC, we can see the development of more flexible laws to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium, which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.

The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare) and were in effect often the source of new legal rules. A Praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict (edictum traslatitium).

Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law was so defined by the famous Roman jurist Papinian (142–212 AD): "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit"). Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis.

Classical Roman law

The first 250 years of the current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication. The law of this period is often referred to as the classical period of Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.

The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts, in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.

The jurists also produced all kinds of legal punishments. Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian. The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here:

• Roman jurists clearly separated the legal right to use a thing (ownership) from the factual ability to use and manipulate the thing (possession). They also established the distinction between contract and tort as sources of legal obligations.
• The standard types of contract (sale, contract for work, hire, contract for services) regulated in most continental codes and the characteristics of each of these contracts were developed by Roman jurisprudence.
• The classical jurist Gaius (around 160) invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries. It can be recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the French Code civil or the German BGB.

The Roman Republic had three different branches:

• Assemblies
• Senate
• Consuls

The Assemblies could decide whether war or peace. The Senate had complete control over the Treasury, and the Consuls had the highest juridical power.

Post-classical law

By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the principate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate. The existence of a legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in the eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law.

Substance

Concept of laws

• ius civile, ius gentium, and ius naturale – the ius civile ("citizen law", originally ius civile Quiritium) was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens. The ius gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. The Praetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners. Jus naturale was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "natural law" instilled in all beings a common sense.
• ius scriptum and ius non-scriptum – meaning written and unwritten law, respectively. In practice, the two differed by the means of their creation and not necessarily whether or not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. "laws") and plebiscita (lit. "plebiscites," originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non-scriptum was the body of common laws that arose from customary practice and had become binding over time.
• ius commune and ius singulare – Ius singulare (singular law) is special law for certain groups of people, things, or legal relations (because of which it is an exception from the general rules of the legal system), unlike general, ordinary, law (ius commune). An example of this is the law about wills written by people in the military during a campaign, which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances.
• ius publicum and ius privatum – ius publicum means public law and ius privatum means private law, where public law is to protect the interests of the Roman state while private law should protect individuals. In the Roman law ius privatum included personal, property, civil and criminal law; judicial proceeding was private process (iudicium privatum); and crimes were private (except the most severe ones that were prosecuted by the state). Public law will only include some areas of private law close to the end of the Roman state. Ius publicum was also used to describe obligatory legal regulations (today called ius cogens—this term is applied in modern international law to indicate peremptory norms that cannot be derogated from). These are regulations that cannot be changed or excluded by party agreement. Those regulations that can be changed are called today ius dispositivum, and they are not used when party shares something and are in contrary.

Public law

Cicero, author of the classic book The Laws, attacks Catiline for attempting a coup in the Roman Senate.

 

The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate from ideas found in the Roman constitution.

The constitution of the Roman Republic was not formal or even official. Its constitution was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero, lost a willingness to remain faithful to it towards the end of the republic. When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman Emperor, Augustus, attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to the Principate, e.g. reusing prior grants of greater imperium to substantiate Augustus' greater imperium over the Imperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of the Roman Empire.

Private law

Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below.

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.

Status

To describe a person's position in the legal system, Romans mostly used the expression togeus. The individual could have been a Roman citizen (status civitatis) unlike foreigners, or he could have been free (status libertatis) unlike slaves, or he could have had a certain position in a Roman family (status familiae) either as the head of the family (pater familias), or some lower member—alieni iuris—which lives by someone else's law. Two status types were senator and emperor.

Litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.

During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum. They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list.

No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all the evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.).

Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate.

Legacy

In the East

Title page of a late 16th-century edition of the Digesta, part of Emperor Justinian's Corpus Juris Civilis

When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation. The influence is visible even in the law of persons or of the family, which is traditionally the part of the law that changes least. For example, Constantine started putting restrictions on the ancient Roman concept of patria potestas, the power held by the male head of a family over his descendants, by acknowledging that persons in potestate, the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father.

The codes of Justinian, particularly the Corpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian issued a new code, the Ecloga, in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica. Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with the Syro-Roman law book, also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.

In the West

In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes were issued by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes.

The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna. The law school there gradually developed into Europe's first university.

The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after the end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian, a Roman jurist). 

There are several reasons that Roman law was favored in the Middle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and it prescribed the possibility that the legal subjects could dispose their property through testament.

By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.

Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law. 

The practical application of Roman law, and the era of the European Ius Commune, came to an end when national codifications were made. In 1804, the French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century, Roman law in Germany had been heavily influenced by domestic (customary) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Bürgerliches Gesetzbuch, BGB) went into effect in 1900.

Colonial expansion spread the civil law system.

Today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old jus commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: no code completely broke with the Roman tradition. Rather, the provisions of the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions.

As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune, which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model.

Due process

From Wikipedia, the free encyclopedia

https://en.wikipedia.org/wiki/Due_process 

Due process is the legal requirement that the state must respect all legal rights that are owed to a person. Due process balances the power of law of the land and protects the individual person from it. When a government harms a person without following the exact course of the law, this constitutes a due process violation, which offends the rule of law.

Due process has also been frequently interpreted as limiting laws and legal proceedings (see substantive due process) so that judges, instead of legislators, may define and guarantee fundamental fairness, justice, and liberty. That interpretation has proven controversial. Analogous to the concepts of natural justice, and procedural justice used in various other jurisdictions, the interpretation of due process is sometimes expressed as a command that the government must not be unfair to the people or abuse them physically. The term is not used in contemporary English law, but two similar concepts are natural justice, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the American theory of due process, which, as explained below, presently contains many implied rights not found in either ancient or modern concepts of due process in England.

Due process developed from clause 39 of Magna Carta in England. Reference to due process first appeared in a statutory rendition of clause 39 in 1354 thus: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law." When English and American law gradually diverged, due process was not upheld in England but became incorporated in the US Constitution.

By jurisdiction

Magna Carta

In clause 39 of Magna Carta, issued in 1215, John of England promised: "No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." Magna Carta itself immediately became part of the "law of the land", and Clause 61 of that charter authorized an elected body of 25 barons to determine by majority vote what redress the King must provide when the King offends "in any respect against any man". Thus, Magna Carta established the rule of law in England by not only requiring the monarchy to obey the law of the land but also limiting how the monarchy could change the law of the land. However, in the 13th century, the provisions may have been referring only to the rights of landowners, and not to ordinary peasantry or villagers.

Shorter versions of Magna Carta were subsequently issued by British monarchs, and Clause 39 of Magna Carta was renumbered "29". The phrase due process of law first appeared in a statutory rendition of Magna Carta in 1354 during the reign of Edward III of England, as follows: "No man of what state or condition he be, shall be put out of his lands or tenements nor taken, nor disinherited, nor put to death, without he be brought to answer by due process of law."

In 1608, the English jurist Edward Coke wrote a treatise in which he discussed the meaning of Magna Carta. Coke explained that no man shall be deprived but by legem terrae, the law of the land, "that is, by the common law, statute law, or custom of England.... (that is, to speak it once and for all) by the due course, and process of law.."

Both the clause in Magna Carta and the later statute of 1354 were again explained in 1704 (during the reign of Queen Anne) by the Queen's Bench, in the case of Regina v. Paty. In that case, the British House of Commons had deprived John Paty and certain other citizens of the right to vote in an election and committed them to Newgate Prison merely for the offense of pursuing a legal action in the courts. The Queen's Bench, in an opinion by Justice Powys, explained the meaning of "due process of law" as follows:

[I]t is objected, that by Mag. Chart. c. 29, no man ought to be taken or imprisoned, but by the law of the land. But to this I answer, that lex terrae is not confined to the common law, but takes in all the other laws, which are in force in this realm; as the civil and canon law.... By the 28 Ed. 3, c. 3, there the words lex terrae, which are used in Mag. Char. are explained by the words, due process of law; and the meaning of the statute is, that all commitments must be by a legal authority; and the law of Parliament is as much a law as any, nay, if there be any superiority this is a superior law.

Chief Justice Holt dissented in this case because he believed that the commitment had not in fact been by a legal authority. The House of Commons had purported to legislate unilaterally, without approval of the British House of Lords, ostensibly to regulate the election of its members. Although the Queen's Bench held that the House of Commons had not infringed or overturned due process, John Paty was ultimately freed by Queen Anne when she prorogued Parliament.

English law and American law diverge

Throughout centuries of British history, many laws and treatises asserted various requirements as being part of "due process" or included in the "law of the land". That view usually held in regards to what was required by existing law, rather than what was intrinsically required by due process itself. As the United States Supreme Court has explained, a due process requirement in Britain was not "essential to the idea of due process of law in the prosecution and punishment of crimes, but was only mentioned as an example and illustration of due process of law as it actually existed in cases in which it was customarily used".

Ultimately, the scattered references to "due process of law" in English law did not limit the power of the government; in the words of American law professor John V. Orth, "the great phrases failed to retain their vitality." Orth points out that this is generally attributed to the rise of the doctrine of parliamentary supremacy in the United Kingdom, which was accompanied by hostility towards judicial review as an undemocratic foreign invention.

Scholars have occasionally interpreted Lord Coke's ruling in Dr. Bonham's Case as implying the possibility of judicial review, but by the 1870s, Lord Campbell was dismissing judicial review as "a foolish doctrine alleged to have been laid down extra-judicially in Dr. Bonham's Case..., a conundrum [that] ought to have been laughed at". Lacking the power of judicial review, English courts possessed no means by which to declare government statutes or actions invalid as a violation of due process. In contrast, American legislators and executive branch officers possessed virtually no means by which to overrule judicial invalidation of statutes or actions as due process violations, with the sole exception of proposing a constitutional amendment, which are rarely successful. As a consequence, English law and American law diverged. Unlike their English counterparts, American judges became increasingly assertive about enforcing due process of law. In turn, the legislative and executive branches learned how to avoid such confrontations in the first place, by tailoring statutes and executive actions to the constitutional requirements of due process as elaborated upon by the judiciary.

In 1977, an English political science professor explained the present situation in England for the benefit of American lawyers:

An American constitutional lawyer might well be surprised by the elusiveness of references to the term 'due process of law' in the general body of English legal writing.... Today one finds no space devoted to due process in Halsbury's Laws of England, in Stephen's Commentaries, or Anson's Law and Custom of the Constitution. The phrase rates no entry in such works as Stroud's Judicial Dictionary or Wharton's Law Lexicon.

Two similar concepts in contemporary English law are natural justice, which generally applies only to decisions of administrative agencies and some types of private bodies like trade unions, and the British constitutional concept of the rule of law as articulated by A. V. Dicey and others. However, neither concept lines up perfectly with the American conception of due process, which presently contains many implied rights not found in the ancient or modern concepts of due process in England.

United States

The Fifth and Fourteenth Amendments to the United States Constitution each contain a Due Process Clause. Due process deals with the administration of justice and thus the Due Process Clause acts as a safeguard from arbitrary denial of life, liberty, or property by the government outside the sanction of law. The Supreme Court of the United States interprets the clauses as providing four protections: procedural due process (in civil and criminal proceedings), substantive due process, a prohibition against vague laws, and as the vehicle for the incorporation of the Bill of Rights.

Others

Various countries recognize some form of due process under customaryinternational law. Although the specifics are often unclear, most nations agree that they should guarantee foreign visitors a basic minimum level of justice and fairness. Some nations have argued that they are bound to grant no more rights to aliens than they do to their own citizens, the doctrine of national treatment, which also means that both would be vulnerable to the same deprivations by the government. With the growth of international human rights law and the frequent use of treaties to govern treatment of foreign nationals abroad, the distinction, in practice, between these two perspectives may be disappearing.