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Using the term Roman law in a broader sense, one may say that Roman law is not only the legal system of ancient Rome but the law that was applied throughout most of Europe until the end of the 18th century. In some countries like Germany the practical application of Roman law lasted even longer. For these reasons, many modern civil law systems in Europe and elsewhere are heavily influenced by Roman law. This is especially true in the field of private law. Even the English and North American Common law owes some debt to Roman law although Roman law exercised much less influence on the English legal system than on the legal systems of the continent. The influence of Roman law is shown by the wealth of legal terminology, retained by all legal systems, like stare decisis, culpa in contrahendo[1] or pacta sunt servanda.
Development of Roman law
Origins
Roman Law begins with the Law of the XII Tables, the first important piece of legislation in the early Republic, dating from the middle of the 5th century BC. According to Roman historians, the plebeian tribune C. Terentilius Arsa proposed that the law should be written down in order to prevent it from being applied discriminatingly by the patrician magistrates.[2] After 8 years of struggle the plebeians convinced the patricians to send a delegation to Athens to copy out the Laws of Solon. In addition, various delegations were sent to other cities in Greece in order to find about their legislations[2]. In 451 BC, ten Roman citizens were chosen to record the laws (decemviri legibus scribundis). For the period in which they performed this task, they were given supreme political power (imperium), while the power of the magistrates was restricted[2]. In 450 BC, the decemviri produced of the laws on ten tablets (tabulae), but was regarded unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the XII Tables was approved by the people's assembly.[2]
Modern scholarship tends to challenge the accuracy of Roman historians. It is generally considered unlikely 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 taken upon itself the leading functions in Rome[2]. Furthermore, the question on the Greek influence found in the early Roman Law is still much discussed. It is unlikely that an official delegation was sent to Greece as the Romans believed, instead, it is suggested that Greek legislations were acquired from the Greek cities of Magna Graecia, which used to act as Rome's main portal to the Greek world[2]. The original text of the XII Tablets has not been preserved. They were probably destroyed when Rome was conquered and set on fire by the Celts in 387 BC.[2]
A view (Jenő Szmodis, 2005) suggests that the ancient roots of the Roman Law derive directly from the Etruscan religion, which puts great emphasis on the rituality and is rather formality-centred concerning its nature. As evidence, Szmodis drafts the structure of the bi-rooted Roman culture, then it verifies its Etruscan descent through the description of certain phenomena and institutions. (J. Szmodis: The Reality of the Law—From the Etruscan Religion to the Postmodern Theories of Law; Ed. Kairosz, Budapest, 2005.; http://www.jogiforum.hu/publikaciok/231)
Archaic period
The private law of this time (754–201 BC) was old Roman civil law (ius civile Quiritium), which applied only to Roman citizens. It was closely bonded to religion and it was undeveloped with attributes of strict formalism, symbolism and conservatism, such as the highly-ritualised practice of Mancipatio, a form of sale.
It is impossible to give an exact date for the beginning of the development of Roman legal system. The first legal text, the content of which is known to us in some detail, is the law of the twelve tables. The fragments which have been preserved show that it was not a law code in the modern sense. It did not aim to provide a complete and coherent system of all applicable rules or to give legal solutions for all possible cases. Rather, the twelve tables contain a number of specific provisions designed to change the customary law already in existence at the time of the enactment. The provisions pertain to all areas of law. However, the largest part seems to have been dedicated to private law and civil procedure.
The important law sources of this time are results of class struggle between patricians and plebeians. As the result of this struggle "Law of twelve tables" has been made. Other 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 consuls is 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 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 in order 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 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 law 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 (so called because praetors were central to the creation of this new body of law and because the Praetorship was an honorary service). 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, however, 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 (Amilius Papinianus—died in 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 are 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 the highest degree of perfection. The law of this period is often referred to as 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 commentaries and treatises. 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 Domitius Ulpianus .
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 found 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.
Post-classical law
By the middle of the 3rd century the conditions for the flourishing of a refined legal culture had become less favorable. The general political and economic situation deteriorated. 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-third 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. Where the writings of classical jurists were still known, they were edited to conform to the new situation.
Important concepts of Roman law
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 (sg. Praetor Urbanus) were 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 (sg. Praetor Peregrinus) were the individuals who had jurisdiction over cases involving citizens and foreigners.
Some Roman jurists introduced ius naturale as a further category. It encompassed natural law, the body of laws that were considered common to all beings. The jurists wondered why the "ius gentium" was in general accepted by all people living in the empire. Their conclusion was that these laws made sense to a reasonable person and thus were followed. All laws which would make sense to a normal person were called ius naturale. Slavery for example was part of the empire-wide ius gentium because slavery was known and accepted as a fact in all parts of the by then known world, nevertheless slavery does not make sense to a reasonable person. Forcing people to work for others was not natural. So, slavery was part of the "jus gentium" but not of the "ius naturale".
Ius Scriptum and Ius Non Scriptum
The terms ius scriptum and ius non scriptum literally mean 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).
The ius non scriptum was the body of common laws that arose from customary practice and had become binding over time.
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 used when party shares something and are not in opposition.
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 principles 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.
Rights of the people (status)
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Main article: Status in Roman legal system
To describe a person's position in the legal system, Romans mostly used the expression status. 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.
Roman litigation
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Main article: Roman litigation
Ancient Rome had no public prosecution service, like the Crown Prosecution Service, so individual citizens had to bring cases themselves, usually for little or no financial reward. However, politicians often brought these cases, as to do so was seen as a public service. Early on, this was done by means of a verbal summons, rather than a written indictment. However, later, cases could be initiated through a written method. After the case was initiated, a judge was appointed and the outcome of the case was decided.
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.
For cases of great public interest, there was a tribunal with five judges. First, the parties selected seven from a list, and from those seven the five were chosen randomly. They were called recuperatores.
No-one had a legal obligation to judge a case, which was understood to be a burden. However, there was a moral obligation to do so, what was known as "officium". 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.
Afterlife of Roman law
Roman law in the East
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[3]. 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, by acknowledging that persons in potestate could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law.[3] 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.[3] In the Byzantine Empire, the codes of Justinian became the basis of legal practice. 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 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.
Roman law in the West
In the west, Justinian's authority didn't go farther than certain portions of the Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the influence of earlier Eastern Roman codes on some of these is quite discernible. In many cases, ethnic 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 Code and the Institutes themselves were known in Western Europe (though they had little influence on legal practice in the early Middle Ages), but the Digest was largely ignored for several centuries. Around 1070, 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 one of Europe’s first universities.
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 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).
There have been several reasons why Roman law was favored in the Middle Ages. It was because Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and because 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 in most 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 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 (common) 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) came into force in 1900.
Roman law today
Today, Roman law is no longer applied in legal practice, even though the legal systems of some states like South Africa and San Marino are still based on the old Ius 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 Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of 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 Ius Commune, which was the common basis of legal practice everywhere, but allowed for many local variants, is seen by many as a model.
See also
References
- ^ In Germany, Art. 311 BGB
- ^ a b c d e f g "A Short History of Roman Law", Olga Tellegen-Couperus p. 19–20.
- ^ a b c "A Short History of Roman Law" By Olga Tellegen-Couperus, Tellegen-Couper
Further reading
- Fritz Schulz, History of Roman Legal Science. Clarendon Press. 1953.
- Peter Stein, Roman Law in European History. Cambridge University Press, 1999 (ISBN 0-521-64372-4).
- Andrew Borkowski and Paul Du Plessis, Textbook on Roman law. Oxford University Press, 3rd Ed. (ISBN 0-19-927607-2).
- Barry Nicholas, An Introduction to Roman Law. Clarendon Press, 1962 (ISBN 0-19-876063-9).
- Jill Harries, "Law and Empire in Late Antiquity" Cambridge, 1999 (ISBN 0-521-41087-8).
External links
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