Teaching Classical Jurisprudence at Berkeley

A Guest Post and Syllabus by Prof. Daniel Lee

The editors are delighted to present a guest post by Professor Daniel Lee of the University of California at Berkeley. Many will already know of Professor Lee’s outstanding work — on the theory of sovereignty in Jean Bodin, on the lex regia, and other topics. He is a political theorist by training, but also has a courtesy appointment in law, and writes on classical law and legal theory in addition to political theory. He is now teaching, among other things, classical jurisprudence, and has given us a description of the background and aims of the course, along with a full syllabus, also presented below (although we have omitted portions relevant only to Berkeley students). Enjoy! — Eds.

When I first offered a lecture course on Roman law at Berkeley as a one-time special topics option, I was not sure whether the topic could attract many students and was genuinely worried about enrollment. Not only was the course filled to capacity with an extensive waiting list, the study of classical jurisprudence became one of the most popular undergraduate courses I taught at Berkeley. It is now one of my regular course offerings, and I continue to be impressed at the course’s enormous popularity, not only among students but also among Bay Area community auditors.

Jurisprudence is often presented as a branch of philosophy, especially in Anglo-American academia. Most university syllabi approach the topic through a survey of the philosophy of law – e.g., Aristotle, Cicero, Aquinas, Hobbes, Bentham – and then proceeding onto the modern classics in legal philosophy such as Hart, Finnis, Raz, Dworkin. My own course syllabus surveys many of these classics in the literature, but with one fundamental difference – I begin with Roman law.

For centuries, jurisprudence was introduced through a methodical study of the classical Roman law of Justinian – described as ratio scripta (‘written reason’) itself. Why Roman law? It was the most versatile and complete legal system of the ancient world. When it was rediscovered in the eleventh century and sparked the golden era of medieval jurisprudence in Latin Christendom, Roman law functioned (as Peter Stein once put it) as a ‘legal supermarket’ that judges and lawyers could ‘shop’ around for legal doctrines to resolve local legal puzzles. (And eventually political theorists, too, would ‘shop’ in these Roman legal supermarkets to craft modern theories of state, sovereignty, social contracts, and rights)

Justinian’s lawbooks provided a shared legal vocabulary and a robust habit of juridical reasoning that would distinguish fundamental features of Western jurisprudence – e.g., ius naturale vs. ius gentium vs. ius civile; ownership vs. possession; rules of succession; paterfamilial power vs. tutorial administration; nominate vs. innominate contracts; liberty vs. slavery; occupation vs. usucaption vs. accession; etc.

A principal goal in this course has been to introduce students to the subject according to this classical approach through Roman law – as I describe to students, the via antiqua, ‘old school’ jurisprudence. I find there are several pedagogical benefits, the first of which is that students come to see how law isn’t simply one isolated rule or norm, but a whole system of interrelated first-order and higher-level norms and exceptions. It is not really possible to theorize about law at an abstract level without some concrete substantive knowledge of how legal system functions as a whole with many moving parts. Indeed, it is for this reason that many countries in the Civil Law world continue to begin formal legal education through Roman law. I also find that students develop a sensitivity for the historicity of law, by studying fossilized legal artifacts that have become (as Alan Watson has famously called them) ‘legal transplants’ into the modern world. I reinforce this point in my classes when I bring in original published texts into class, including a 1579 Venice Corpus Iuris Civilis, a 1646 Grotius De Jure Belli ac Pacis, and a 1698 Pufendorf De Jure Naturae et Gentium.

Many of my former students have, not surprisingly, continued onto law school and are now practitioners themselves. The one point I consistently hear from former students is how much they felt the study of classical Roman law prepared them for legal training and improved their legal reasoning. Seeing that Berkeley has had a long history in preserving this classical legal tradition, I am especially proud to continue this intellectual legacy and introduce new generations to this subject.

(This course is also offered online during the Berkeley Summer Session).

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SYLLABUS

University of California, Berkeley

Charles & Louise Travers Department of Political Science

PS 117L: Jurisprudence

Spring 2026

Jurisprudence: A Classical Approach to Legal Science

Jurisprudence (from Latin: ‘juris prudentia’ = the science of law) is the academic study of law. Jurisprudence investigates fundamental theoretical questions about law such as its source (where does a law come from?) and validity (what gives law its force?), its purpose and its structure. It is one of the oldest branches of legal study, dating back to Aristotle and Cicero.

This course introduces students to the subject through a traditionally classical approach, as law students have been taught for centuries - through the study of classical Roman law. Building on that background, students will then be introduced to the major interpretive schools of jurisprudence – chiefly, the natural law school and legal positivism – as well as recent Anglo-American contributions to jurisprudence.

The course is organized into two Parts.

Module I of the course is a detailed introduction to Roman law. Roman law is the ancestor to most major modern legal systems and, thus, it has long been regarded the foundation of modern jurisprudence. Roman law continues to remain the foundation of jurisprudence in civil law countries in Europe, Africa, Latin America, and Asia, and increasingly in international law. Many legal rules and concepts still recognized by courts (e.g., the possessory interdict uti possidetis and the principle of occupatio in modern international law). You will study Roman law in much the same way it has been taught to generations of law students over many centuries, by reading the Institutes of Gaius and Justinian. You will also have an opportunity to study sample cases.

Module II then proceeds to introduce students to major schools of modern jurisprudence, including the Natural Law School, the Command Theory of Law of John Austin, Modern Legal Positivism as articulated by H.L.A. Hart, as well as Ronald Dworkin’s Law-as-Integrity theory of interpretivist jurisprudence.

1. Introduction (Jan. 20)

Topics: The introductory lecture will introduce some of the major theoretical questions of the course, as well as provide a preview of the overall outline of the course. I will also explain the method of the course: The formal study of jurisprudence requires at least some basic familiarity with how a legal system works. We will devote our study of the most important historical legal system – classical Roman law.

What are the purposes of jurisprudence or ‘legal science’? What is law? How, if at all, might it differ from rules, informal norms, customs? What gives law its binding force? What about exceptions from rules – are they law as well? Is law simply a formal expression of morality? Is law a ‘science’ that can be separated from politics?

Readings: Optional: Shapiro, Legality (Ch. 1: What is law and why should we care?)

Module I: Classical Roman Law

§1: Foundations

2. A Brief History of Roman Law (Jan. 22)

Topics: Why study Roman law in the 21st century? How has Roman law influenced modern jurisprudence, international law, and the social sciences? What were the three main periods of Roman history? What were the principal legal and political institutions associated with each period? What are some of the major historical trends that have shaped how modern lawyers have interpreted the development of civil law?

Readings: Nicholas, Introduction to Roman Law (pp. 1-14)

3. The Principal Sources of Roman Law (Jan. 27)

Topics: What were the principal sources of Roman legislation? What are the four main parts of Justinian’s Corpus Iuris Civilis (= ‘the body of civil law’)? Was Roman law always written? What was the function of ius naturale (= ‘natural law’) and ius gentium (= ‘law of nations’) in Roman law? What does it mean that ‘ancient law was in principle personal’?

Readings: Nicholas, Introduction to Roman Law (pp. 14-18, 28-45, 54-59)

Gaius, Institutes 1.1-1.7 (Zulueta, pp. 3-5 odd pages) Justinian, Institutes 1.1.1-1.2.11 (Moyle, pp. 3-6)

4. Litigation: The Essentials of a Roman Lawsuit and Trial (Jan. 29)

Topics: What were some of the social risks associated with litigation? Explain the role of the praetor and the judge [iudex] in litigation. What is a ‘formula’ in a Roman lawsuit? What were the two basic stages in a Roman trial?

Readings: Nicholas, Introduction to Roman Law (pp. 19-28)

Frier, Casebook on the Roman Law of Contracts

(Introduction, pp. 1-4)

§2: Persons

5. The Law of Persons: Free Persons and Slaves, Citizens and Non-Citizens (Feb. 3)

Topics: Explain Gaius’ statement that Roman law concerns either ‘Persons, Things, or Actions’? Who/what is a legal ‘person’? What makes a person ‘free’ [liber]? A slave? How does a slave become free, and vice-versa? Explain the difference between citizens, Latins, and peregrines. Note some of the differences between Gaius and Justinian: How did later emperors and Justinian try to reform the law of persons? Did manumission entirely release the freedman from the former master’s control?

Readings: Nicholas, Introduction to Roman Law (pp. 60-1; 64-65; 69-76)

Gaius, Institutes 1.8-47 (Zulueta, pp. 5-15 odd pages only) Justinian, Institutes 1.2.12- 1.6.7 (Moyle, pp. 6-11)

6. The Law of Persons: The Roman Family (Feb. 5)

Topics: What is the difference between ‘independent’ [sui iuris] and ‘dependent’ [alieni iuris] persons? Explain the role of the ‘head of household’ [paterfamilias] and his legal powers over all other members of the family. How does one become a member of a family? What are the main types of legal marriage in Roman law?

Readings: Nicholas, Introduction to Roman Law (pp. 65-69; 76-90) Gaius, Institutes 1.48-1.141 (Zulueta, pp. 17-47, odd pages only)

Justinian, Institutes 1.8.1-1.12.10 (Moyle, pp. 11-20)

7. The Law of Persons: Guardianship (Feb. 10)

Topics: What is the function of a guardian? Explain the difference between a tutor and a curator? Who requires a legal guardian? Do guardians have ‘power’ over their wards? What legal remedies are available for untrustworthy guardians? Explain how a capitis deminutio results in a change of legal status.

Readings: Nicholas, Introduction to Roman Law (pp. 90-97)

Gaius, Institutes 1.142-1.200 (Zulueta, pp. 49-63, odd pages)

Justinian, Institutes 1.13.pr-1.26.13 (Moyle, pp. 20-34)

§3: Property

8. The Law of Property: Ownership (Feb. 12)

Topics: How would a property dispute be handled in a Roman court? What are the major divisions and categories of property in Roman law? What are ‘servitudes’?

Readings: Justinian, Institutes 2.1.pr-2.1.10 (Moyle, pp. 35-36),

2.2 (Moyle, p. 46), 2.3-2.5 (Moyle, pp. 46-50)

Gaius, Institutes 2.1-2.39 (Zulueta, pp. 67-75, odd pages)

9. The Law of Property: Acquiring and Losing Possession (Feb. 17)

Topics: What is the difference between acquiring ‘ownership’ and acquiring ‘possession’? What does corpore et animo mean? How can possession be legally protected?

Readings: Nicholas, Introduction to Roman Law (pp. 107-115) Selected Cases (to be determined)

The Law of Property: Acquiring and Losing Ownership (Feb. 19)

Topics: What are the ius gentium (or ‘natural’) and ius civile methods of acquiring ownership in property? What is a ‘Publician action’ (Gaius 4.36)?

Readings: Nicholas 117-140

Gaius, Institutes 2.18-2.27 (Zulueta, pp. 71-73, odd pages); 2.40-2.79 (Zulueta, pp. 75-87, odd pages) Justinian, Institutes 2.1.11-2.1.48 (Moyle, pp. 36-45),

2.6-2.9 (Moyle, pp. 50-60)

§4: Per Universitatem: Succession

11. The Law of Successions (Feb. 24)

Topics: What are the main types of ius civile will in universal succession? What is the function of the familiae emptor? Who can be heres? In a lawsuit for an improperly executed will, how can the named parties defend themselves against the party bringing suit on intestacy? What is bonorum possessio? What sort of gifts or bequests could be made out of an estate, and what limitations did the law impose on the kinds of gifts that a testator could make?

Readings: Nicholas, Introduction to Roman Law Ch. 5 (pp. 234-270) Gaius, Institutes (selected excerpts) 2.97-3.87 (Zulueta, pp. 91-179, odd pages)

§5: Obligations

12. The Law of Obligations: Contracts (Feb. 26)

Topics: What is a legal obligation, how does it differ from a moral obligation? Explain the key difference between Gaius and Justinian in their organization of obligations. Explain the legal concept of debt [debitum]. What are the four principal categories of contracts?

Readings: Nicholas, Introduction to Roman Law (pp. 158-171; 193-198; 204-5)

Gaius, Institutes 3.88-3.134 (Zulueta, pp. 179-195, odd pages)

Justinian, Institutes 3.13-3.18, 3.20-21 (Moyle, pp. 130-

36; 142-43)

13. The Law of Obligations: Contracts (Mar. 3)

Topics: What are the four principal consensual contracts? What are ‘innominate’ contracts and bare pacts? What is a ‘quasi-contract’ in Justinian? How are contracts dissolved? Can one be obliged through the actions of others?

Readings: Nicholas, Introduction to Roman Law (pp. 171-192; 227-33) Gaius, Institutes 3.135-3.181 (Zulueta, pp. 195-213, odd pages)

Justinian, Institutes 3.22-2.29 (Moyle, pp. 143-158)

14. The Law of Obligations: Delicts (Mar. 5)

Topics: What is a delict, and why is it considered a debt giving rise to obligation? What is an ‘Aquilian action’? What is a ‘quasi-delict’ in Justinian’s classification?

Reading: Nicholas, Introduction to Roman Law (pp. 207-225)

Gaius, Institutes 3.182-3.224 (Zulueta, pp. 213-229, odd pages)

Justinian, Institutes 4.1-4.5 (Moyle, pp.159-173)

§6: Actions

15. The Law of Actions (Mar. 10)

Topics: What is an ‘action’ [actio] in Roman litigation? An ‘exception’ [exceptio], replication [replicatio], rejoinder [duplicatio], surrejoinder [triplicatio]? What is the difference between an actio in rem and actio in personam?

Readings: Nicholas, Introduction to Roman Law (pp. 98-103)

Gaius, Institutes 4.1-4.10 (Zulueta, pp. 233-235, odd pages), 4.115-4.155 (pp. 281-295, odd pages)

Justinian, Institutes 4.6, 4.8-14 (Moyle, pp. 173-185, pp.

188-198)

Mid-Term Examination (March 12)

A mid-term examination will be administered during the scheduled lecture time to conclude Module I. This is a 60-minute ‘closed book’ and ‘in person’ mid-term exam. Students will be permitted to prepare and use a one-page personal study guide during the exam.

Module II: Schools of Jurisprudence

§1. Major Questions of Jurisprudence

16. What is and isn’t law? (Mar. 17)

Topics: The purpose of this lecture will be to transition, by way of introduction, into Part II of the course. Given your study of classical Roman law up to this point, you will now be in a position to ask more abstract, theoretical questions about law in general: What is/isn’t law? Is law coextensive with morality? Is law reducible to a rule? Must law always have a lawmaker? We begin with perhaps the most important legal theorist of the twentieth century,

H.L.A. Hart, who succinctly lays out many items on our agenda for Part II.

Reading: Hart, The Concept of Law, Ch. 1 (pp. 1-17)

§2. The Natural Law School

17. Classical Natural Law: (Mar. 19)

Topics: The Natural Law School is a venerable tradition of jurisprudence with roots in classical philosophy and law. Its basic insight is that the validity and obligatory force of a law derives, not from any fact concerning the law’s promulgation, but its rationality and natural morality. We will study select excerpts from classical sources explaining the purpose of natural law – Aristotle and Cicero – as well as review some legal cases in Roman law and modern law for illustration. Think about what is ‘natural’ about natural law.

Readings: Aristotle, Nicomachean Ethics V, pp. 267 (V.2, §§12-13),

pp. 295, 297 (V.7)

Cicero, On Laws, Loeb ed., odd pp. 311-335 (I.13-I.35); odd pp. 379-387 (II.8-14)

18. Natural Law: Aquinas (Mar. 31)

Topics: We will continue the work from the previous lecture and focus on perhaps the most influential theorist of natural law in Western Christianity, Thomas Aquinas. Does natural law require some commitment to a theology of the divine? Can there be natural law without God? Are we required to be virtuous? Is it ‘natural’ to be virtuous?

Readings: Aquinas, Summa of Theology (Treatise on the Laws, trans.

Sigmund) pp. 44-58

19. Modern Natural Law: Grotius and Pufendorf (Apr. 2)

Topics: The Natural Law School was revived in the seventeenth century in the work of Hugo Grotius and Samuel Pufendorf, who are credited with creating a new ‘science of morality.’ We will focus on some examples of their treatment of property and contracts. Is natural law enforceable?

Readings: Pufendorf, The Duty of Man and Citizen excerpts

• pp. 27-38, pp. 64-67

Grotius, The Law of War and Peace excerpts

• I.1 (Law): pp. 38-39 (IX-X)

• II.1 (Lawful Use of Force): p. 179 (§.XI)

• II.2 (Occupatio): p. 192 (§.V)

• II.11 (Promises): pp. 330-332 (§§.II-IV), pp. 335-36 (§.IX), pp. 337-38 (§.XIII)

• II.12 (Contracts): p. 346 (§.VIII), p.349 (§.XI), pp.350-53 (§§.XIII-XV), pp. 354-55 (§.XVIII)

§3. Legal Positivism

20. Law and Sovereignty: Hobbes (Apr. 7)

Topics: We now turn to another major approach to jurisprudence – Legal Positivism. According to this school of jurisprudence, legal validity is entirely dependent upon some social fact, not the merits of the law. What counts as a ‘social fact’ can be quite broad. Classical Roman law provides us with a range of options (e.g., the Praeter’s Edict, the Emperor’s will). The political philosopher, Thomas Hobbes, gives us another influential answer – sovereignty.

Readings: Hobbes, Leviathan excerpts

• Ch. 14: pp. 91-2 (stop at the end of top paragraph)

• Ch. 21: pp. 147 (start at “But as men, for the atteyning of peace…” - 154

• Ch. 25: pp. 176-77 (stop at “to which he is subject.”)

• Ch. 26: pp. 183-200

21. The Command Theory: Bentham & Austin (Apr. 9)

Topics: We will now study the most important early statement of Legal Positivism, what later has been labeled ‘The Command Theory of Law.’ Its two major proponents were the Utilitarian philosopher, Jeremy Bentham, and the jurist, John Austin. Both established the principle that law is nothing more than the command of legal sovereign authority in a state – and nothing else.

Readings: Bentham, Bentham’s Political Thought, ed Parekh (pp. 146-166)

Austin, Province of Jurisprudence Determined, Lecture

1 (pp. 18-37)

22. Hart’s Critique of the Command Theory (Apr. 14)

Topics: Hart found Austin’s theory (what he called ‘the gunman theory of law’) severely deficient. What were Hart’s objections to the Command Theory? Are laws always in the form of commands and sanctions? Can ‘nullity’ be a sanction in the command theory?

Readings: Hart, Concept of Law (pp. 18-35; 42-49)

23. Hart on Primary and Secondary Rules (Apr. 16)

Topics: We continue our study of Hart and examine Hart’s theory that law is the ‘union of primary and secondary rules.’ Pay special attention to the three secondary rules: the rule of recognition, the rule of change, and the rule of adjudication.

Readings: Hart, Concept of Law Ch. 5 (pp. 79-99)

24. Kelsen on Norms and the Grundnorm (Apr. 21)

Topics: One of the great theorists of legal positivism in the twentieth century was the Austrian jurist, Hans Kelsen (and professor of political science at UC Berkeley). We will study some aspects of Kelsen’s pure theory of law as a system of norms united together by a foundational ‘basic norm’ or Grundnorm. How do Kelsen and Hart differ in evaluating the ‘validity’ of a legal rule?

Readings: Kelsen, Pure Theory of Law Ch. 5 (pp. 3-10, 195-208)

§4. American Jurisprudence

Among the most innovative developments in modern jurisprudence originate in modern American jurisprudence. The final lectures will close the course by surveying the most important developments. Keep in mind that these approaches to jurisprudence originate in the context of an Anglo-American Common Law system of ‘judge-made’ law and, thus, are most concerned about the distinctive role of judges in deciding cases, applying like cases alike, by precedent, and methodically interpreting statutes (including Constitutional law). Understanding some of the historical context of these schools of legal thought (e.g., the Progressive and labor movement; desegregation; the civil rights movement) will be essential in making sense of these technical debates.

25. Legal Formalism and Legal Realism (Apr. 23)

Topics: A major technical debate on legal reasoning in twentieth-century American jurisprudence concerned how judges were supposed to interpret and apply the law to specific legal disputes. One viewed law as a kind of dry logic game, where legal solutions emerged almost deductively, not unlike Kelsen’s pure theory. This became known as ‘legal formalism’ and ultimately originated in how European universities of the nineteenth century taught Roman law as a Pandectist legal science. Perhaps the most notorious example of this approach was Lochner v. New York. An alternative approach, known as legal realism, challenged the formalist approach, insisting on the relevance of facts, outside the bare text of the law, in judicial legal reasoning.

Reading: Leiter, ‘Rethinking Legal Realism’ (pp. 275-279) Posner, ‘Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution’ (pp. 180-186)

Hart, Concept of Law (pp. 141-147; optional: read all of Chapter 7)

26. Dworkin: Law as Integrity (Apr. 28)

Topics: Ronald Dworkin was arguably the most important legal theorist of the twentieth century. We will use this lecture to study his theory of ‘law as integrity’ and the critical importance of judicial interpretation in achieving this integrity, symbolized by Dworkin’s Hercules judge.

Reading: Dworkin, Law’s Empire (pp. 15-20; 23-29; 31-37; 43-

49; 87-96; 225-232; 238-254: These will be the readings for both this lecture and the next)

27. Criticisms and Conclusion (Apr. 30)

Topics: The final lecture will bring the course to a close by examining criticisms of the major schools of jurisprudence. We will also return to some of the major interpretive questions with which we started this course in order to revisit the major intellectual purposes of legal science.