Roman law

Dictionary: Roman law

The legal system of ancient Rome, forming the basis for modern civil law.

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5min Related Video: Roman law

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American law has developed apart both from other common‐law jurisdictions and from civil‐law countries. Yet other legal systems have influenced American law. Among those, Roman law is one of the most significant.

The role played by Roman law in shaping the thinking of American jurists and in the development of substantive law in the United States can be easily exaggerated. There was never any possibility that Roman law might displace common law in the United States as a whole, though in those territories once under civil‐law systems, such as Florida and Texas, Roman law did play a dominant role for a time. In the Supreme Court, however, Roman law was always peripheral and served, at most, as a backdrop or counterpoint to American common law. Some specific characteristics of the influence exerted by Roman law are clear and consistent. First, Roman and civil law provided a model of systematic legal structure, especially in their organizational and conceptual framework. Second, Roman law provided a wealth of precise terminology to express complex legal concepts. Third, and most importantly, Roman law provided a source for comparative materials by which to judge American rules, as well as the historical substrata upon which many American and English rules used in the United States rested. Many Supreme Court opinions attempted to provide not only a theoretical justification for legal rules laid down, but also a historical rationale for these rules. Citations to Roman law are common in this context.

Finally, Roman law citations found their way into Supreme Court opinions because individual justices were interested in Roman law. The greatest of the Romanist justices were Joseph Story and Oliver Wendell Holmes, though no Supreme Court justice, including Story and Holmes, was a true scholar of Roman law.

— M. H. Hoeflich

Political Dictionary: Roman law

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More commonly referred to, by lawyers, as civil law, meaning the collection of laws developed under codes promulgated by the Emperor Justinian in ad 528. Today, civil law systems are prevalent in all the member states of the European Union except Ireland and the United Kingdom. European Community law is itself influenced by the civil law tradition rather than the English common law. The characteristics of Roman law, most noticeable to English lawyers, are the use of codes, which are the written formulation of legal principles.

The four parts of Justinian's codification are as follows:

(1) The Institutes setting out the basic elements of jurisprudence which appear in a didactic form.
(2) The Digest or Pandects containing various rules which are derived from the Institutes. These rules are accompanied by opinions on the law and are organized on the basis of a compendium. The Digest is composed of fifty books divided into seven parts. The Pandects also contains fifty books, each book contains several titles. Taken together, both the Digest and the Pandects are an important source of law and authority.
(3) The Codex Justinianis, divided into twelve books; each book had several parts. The first nine books were called the Codex, the remaining three books contained the Jus Publicum.
(4) The Novels (Novellae Constitutiones). About 168 books were placed into one volume which provided an explanation of Justinian's Codes. These were translated into various languages.

Roman law was influential in Britain for over three hundred years during the reigns of the Emperors Claudius to Honorius. However, it never took root and English law developed its own distinctiveness based on the common law rather than on the Justinian Codes.

— John McEldowney

Britannica Concise Encyclopedia: Roman law

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Law of the Roman Republic and Empire. Roman law has influenced the development of law in most of Western civilization. It dealt with matters of succession (or inheritance), obligations (including contracts), property (including slaves), and persons. Most laws were passed by assemblies dominated by the patrician families, though the rulings of magistrates were also important. Later emperors bypassed these forms and issued their own decrees. The interpretations of jurists also came to have the weight of law. Though various attempts were made to gather and simplify existing laws (beginning with the Law of the Twelve Tables), by far the most successful effort was that of Justinian I, whose code superseded all previous laws and formed the Roman Empire's legal legacy (see Code of Justinian). Roman legal procedure is the basis for modern procedure in civil-law countries. In the early Republic, the plaintiff was required to call the defendant to court or to bring him by force. A magistrate then decided whether the case should go before a judex, or prominent layman. The judex heard arguments from advocates and questioned witnesses; he made a decision but had no power to execute it. In the later Republic, much greater power was placed in the hands of the magistrates and courts: the summons was issued by the court, the trial was held only before a magistrate, and the court became responsible for the execution of the sentence.

For more information on Roman law, visit Britannica.com.

Columbia Encyclopedia: Roman law

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Roman law, the legal system of Rome from the supposed founding of the city in 753 B.C. to the fall of the Byzantine Empire in A.D. 1453; it was later adopted as the basis of modern civil law. Most authorities, however, disregard the largely static period following the reign of Justinian I (527-65).

Early Roman Law

Roman law in the earliest period known is typically expressed in the Twelve Tables with their marked formalism. The usual early procedure was also stereotyped; it was the legis actio, a form of charge and denial the words of which had to be followed exactly by the parties at the risk of losing the suit. Exact knowledge of the words constituting the legis actiones was limited to a body of patrician priests, the College of Pontiffs. The reduction of these forms to writing (c.250 B.C.) was a victory for the plebeians and a step in reducing the religious and formal element in the law. Soon the primary source of law became the lex (plural leges), a statutory enactment that was proposed by a magistrate and accepted by a popular assembly. Among the assemblies empowered to enact leges was that of the plebeians.

Expansion and Development

In the late 3d cent. B.C., Roman law could no longer limit itself to the inhabitants of the republic but was forced to take account of the surrounding non-Roman peoples. Thus, to the jus civile, which governed relations among the Romans and those admitted to Roman status, was added the jus gentium, the law applied in dealings with a foreigner. The jus gentium incorporated much of the highly developed commercial law of the Greek city-states and of other maritime powers. Such provisions, being better adapted to Rome's expanding economic needs than the unyielding provisions of the jus civile, in time tended to be applied universally.

The development of new principles was especially vigorous after c.100 B.C., an important source being the jus honorarium, i.e., the law of the praetors (chief magistrates). On assuming office the praetor announced the principles, sometimes novel, that would govern his decisions. The praetors also contributed greatly to making practice more flexible. In place of the legis actiones, they often used the formulary system. A formula, like a legis actio, was a device for determining the issue between the parties; but instead of being a mere interchange of prescribed speeches, it provided a structure for discussing the actual dispute. Whichever method was used, when the nature of the dispute was agreed upon, the parties brought their case before the judex, a private functionary, who considered the evidence and gave judgment.

Under the Empire

After the establishment of the empire, the development of law largely passed from the praetors (the practice of issuing new edicts ended c.A.D. 125) and from the popular assemblies into the hands of the emperors, sometimes operating through the senate. Various types of imperial enactments called constitutions were issued in abundance.

Legal problems attained great complexity, and the aid of a specially trained class of scholars was enlisted for their solution. Those jurists with a special license from the emperor could write responsa to guide the judges in deciding cases. Most prominent among the jurists was Papinian; his work, with that of Gaius, Modestinus, Paulus, and Ulpian, attained the highest authority. The employment of jurists was a step in making the whole of Roman procedure official; in this process the institution of judex was abolished and the trial placed entirely in the hands of a judge.

By the early 4th cent. most branches of Roman law were fully developed. The system was generally responsive to legal needs and allowed sufficient variety to meet local customs. A grave disadvantage of the system, however, was that the vast corpus of legal matter included much that was confused, contradictory, or redundant; reduction to code form was required. The Theodosian Code (438), the earliest attempt, was followed by the Breviary of Alaric (506). Finally the task was accomplished with the culminating work of Roman legal scholarship, the Corpus Juris Civilis (completed 535) under the direction of Tribonian.

Continuing Influence

After the mid-6th cent., Roman law persisted as a part of the Germanic laws and was in effect in the Byzantine Empire. Revival of classical studies during the Renaissance prepared the way for the partial resurrection of Roman law as the modern civil law in a large part of the world. The jus gentium is perhaps the most widely represented in modern legal systems, for it is the basis of commercial law even in those countries that follow common law.

Bibliography

See W. W. Buckland, A Text-Book of Roman Law from Augustus to Justinian (3d ed. 1964); H. J. Wolff, Roman Law (1976); T. Honore, Emperors and Lawyers (1982); J. A. Crook, Law and Life of Rome (1984); D. Earl, The Moral and Political Traditions of Rome (1984); B. W. Frier, The Rise of the Roman Jurists (1985).

History 1450-1789: Roman Law

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This entry is a subtopic of Law.

Roman law consists of the law of the Roman Republic and Empire, from the Twelve Tables (c. 451–450 B.C.E.) to the Corpus Juris Civilis (Body of the Civil Law) of the sixth century C.E. Within the context of Roman law, the term civil law is usually used specifically to refer to the Corpus Juris Civilis, the compilation that was ordered by Emperor Justinian I (ruled 527–565 C.E.) and directed by the jurist Tribonian.

Sources and Organization

Roman law grew amorphously from several sources over a thousand years. These sources were divided into unwritten law (ius non scriptum) and written law (ius scriptum). Unwritten law referred to custom in Roman times, although by the early modern period in Europe, customs were accepted as written law in many places. Written law for the Romans was divided into six categories: acts (leges), resolutions or plebeian statutes (plebiscita), senate resolutions (senatus consulta), imperial laws or constitutions (constitutiones principium), magistrates' edicts (edicta), and jurists' responses or interpretations (responsa prudentium). Contradictions in the laws occurred because these numerous sources were neither coordinated nor routinely collected.

The early attempts to organize Roman law included the Institutes of Gaius in the second century C.E. and the Theodosian Code under Emperor Theodosius II in 438 C.E., but these were incomplete. The final compilation of the Corpus Juris Civilis under Justinian in the sixth century was issued in four parts: the Digest (533), the collection of judicial interpretations of the laws; the Code (534), the imperial laws and rescripts Tribonian's committee chose to keep; the Institutes (533), a condensed version to be used by first-year law students; and the Novels (until 565), new imperial laws.

Medieval Roman Law

Roman law continued to influence European law after the fall of the Western Roman Empire to Germanic tribal rule, but it did so not as territorial law but as merely the personal law of the section of the population claiming to be Roman rather than Germanic. Among the Germanic kingdoms of western Europe, rulers such as the Visigothic kings of Spain used vulgarized forms of Roman law for their Roman subjects. The basis for these laws was usually the Theodosian Code rather than Justinian's, since the former was disseminated before the collapse of the Western Roman Empire. Justinian's corpus was not compiled until after Roman power was largely lost in the West. Roman law also influenced western Europe, because it was used as the basis of canon (church) law in the Corpus Juris Canonici (Body of Canon Law), and Roman civil and canon law also became the basis of the ius commune, a set of legal principles generally accepted throughout Europe. Within each developing state of the late Middle Ages and the early modern period, Roman law had varying impact on local and royal laws, depending on the geographical proximity to the old Roman imperial areas and individual developments within the separate states.

Although it was taught continuously in the East, it was not until the late eleventh century that the West rediscovered the Corpus Juris Civilis of Justinian, and the text was then studied and taught at the medieval universities throughout western Europe beginning in the twelfth century. This new study of the Corpus Juris Civilis began in Bologna, Italy, at the university's law school, and it became popular for a number of reasons. The Roman Empire of Justinian and the medieval Holy Roman Empire were conflated in the minds of many. Justinian was seen as a Holy Roman Emperor and his laws as imperial legislation. In addition, twelfth-century jurists recognized that Roman law represented a high development of legal thought, and they saw Roman law as "written reason" and hence superior to other law.

University scholars not only studied the Corpus Juris Civilis, they also added their own explanations and interpretations, which often became as important as the original text. The earliest of these scholars were known as the glossators, who wrote marginal or interlinear comments called glosses on the entire text of Justinian. In this process they discovered some inconsistencies and contradictions that Tribonian's hurried committee had not managed to eliminate. Glossators tried to resolve such discrepancies by interpretation. Between 1220 and 1250 the glossator Franciscus Accursius compiled a collection of selected glosses, which became known as the Glossa ordinaria (or Magna glossa).

Following the glossators were the commentators (or postglossators). They did not merely continue the glossators' work but also contributed their own legal knowledge by writing original commentaries on the Corpus Juris Civilis and the Glossa ordinaria. They also applied the law to their own time by writing legal opinions in response to questions concerning real cases. Two of the most significant of the early commentators were Bartolus of Saxoferrato and Baldus of Ubaldis. The commentators were most active in the fourteenth and fifteenth centuries, and, like the glossators, most were Italian.

Renaissance Humanism and Roman Law

New approaches to Roman law developed with Renaissance humanism in the fifteenth and sixteenth centuries. Humanists applied philological techniques to the study of the Roman law to determine what it had been meant to say, and they also studied the laws and their meaning in the original context of Rome. Although begun in Italy with the work of Andrea Alciato, this movement reached its height in the French historical school of law in the sixteenth century. Because of their humanist approach, these scholars were able to see the Corpus Juris Civilis in historical context, as a product of its own time and place. They saw it as useful but not infallible, and their work identified many problems in the law itself and in the medieval studies of it. Guillaume Budé, Jacques Cujas, Hugues Doneau, and François Hotman, among others, contributed to this movement in France, as did Ulrich Zasius in Germany. Hotman's Anti-Tribonian (1567) was particularly critical of Justinian's compilation and elevated French law in its place. These scholars established the historicity of Roman law and removed its claim to authority over contemporary societies, even though it could still be seen to a certain extent as "written reason."

Roman Law in France, Germany, and Great Britain

France. Italy and southern France were the areas most continuously influenced by Roman law because they had been governed by the Romans themselves and by Germanic versions of Roman law codes. These were also areas where universities developed early, as did Renaissance humanism. Southern France had adopted Roman law and was known as the land of the written law (pays de droit écrit), while the northern two-thirds of France was subject to diverse local customary laws (pays de droit coutumier). This caused some tension, and French legal humanists tried to resolve some of the problems by carefully applying Roman law. French kings continually tried to increase the uniformity of the country's laws in the sixteenth through eighteenth centuries. Roman law sometimes provided the source of these common laws, but so did the Custom of Paris, which was often seen as a more appropriate source for France. Partly under influence of the "written reason" of the Corpus Juris Civilis, the French tried to codify their customs, frequently using the organization of Roman law as a model for the structure, if not for the laws themselves. This is particularly notable in Antoine Loisel's Institutes Coutumieres (1607) and Étienne Pasquier's L'interprétation des institutes de Justinian (1609).

Germany. In Germany, the reception of Roman law began around 1500, when the ius commune was given precedence over local customs in the imperial supreme court. Use of Roman law in this form was particularly attractive in the Holy Roman Empire, because there were over three hundred independent local jurisdictions, some quite backward administratively. Roman law provided a model for them and also created some form of unity in the fragmented empire.

Great Britain. Scotland had introduced Roman law indirectly in the form of ius commune, because it was distinct from English common law, and the Scots wished to establish their independence from English control. English common law developed independently from Roman law, but some courts in England, the Equity and Admiralty Courts, for example, were influenced by Roman law, at least in the form of the ius commune or through canon law, which church courts continued to use in England even after the Reformation.

The Wider Influence of Roman Law

The growth of the influence of Roman law was a gradual and continuous historical process; the law was adapted to territories well beyond those its Roman originators could have imagined and to uses of which they had not conceived. The Spanish acceptance of Roman law meant that it spread beyond western Europe and came to the Spanish territories of the New World.

Roman law was used to support various, even opposing, ideas. For instance, its maxims could support both absolutism and popular government: while the maxim "What pleases the prince has the force of law" (Quod principi placuit legis habet vigorem) was used as an argument for royal absolutism in various countries, on the other hand, "What touches all must be decided by all" (Quod omnes tangit, ab omnibus approbetur) was used to justify representative government and even rebellion against oppressive regimes. Roman law's influence persisted beyond the end of the early modern period, as it served as the main model for Napoleon Bonaparte's Civil Code (1804).

Bibliography

Primary Sources

Krueger, Paul, ed. Justinian's Institutes. Translated by Peter Birks and Grant Mc Leod. Ithaca, N.Y., 1987. The Institutes is the Roman law work that is most accessible to the beginner in legal studies. This is one of several editions.

Mommsen, Theodor, and Paul Krueger, eds. The Digest of Justinian. 4 vols. Philadelphia, 1985. English translation edited by Alan Watson. The Latin and English texts are on opposing pages.

Scott, S. P., trans. and ed. The Civil Law: Including the Twelve Tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo. 17 vols. in 7. Cincinnati, Ohio, 1932. Reprint, New York, 1973.

Watson, Alan, ed. The Digest of Justinian. 2 vols. Philadelphia, 1998. Revision of Watson's 1985 English translation.

Secondary Sources

Bellomo, Manlio. The Common Legal Past of Europe, 1000–1800. Translated by Lydia G. Cochrane. Washington, D.C., 1995.

Caenegem, R. C. van. An Historical Introduction to Private Law. Translated by D. E. L. Johnson. Cambridge, U.K., and New York, 1988.

Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford, 1985.

Watson, Alan. Roman Law and Comparative Law. Athens, Ga., 1991.

—KATHLEEN A. PARROW

Law Encyclopedia: Roman Law

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This entry contains information applicable to United States law only.

Between 753 b.c. and a.d. 1453, the legal principles, procedures, and institutions of Roman law dominated Western, and parts of Eastern, civilization. The legal systems of western Europe, with the exception of Great Britain, are based on Roman law and are called civil-law systems. Even the common-law tradition found in the English-speaking world has been influenced by it. In the United States, the common law has been paramount, but Roman law has influenced the law of the state of Louisiana, a former French territory that adopted a French civil-law code.

Roman law began as an attempt to codify a set of legal principles for all citizens. In 450 b.c. the Twelve Tables were erected in the Roman Forum. Set forth in tablets of wood or bronze, the law was put on public display, where it could be invoked by persons seeking remedies for their problems. Though the texts of the tablets have not survived, historians believe they dealt with legal procedures, torts, and family law issues.

From 753 to 31 b.c., the Roman republic developed the jus civile, or civil law. This law was based on both custom and legislation and applied only to Roman citizens. By the third century b.c., the Romans developed the jus gentium, rules of international law that were applied to interactions between Romans and foreigners. Over time the jus gentium became a massive compendium of law produced by magistrates and governors.

Romans divided the law into jus scriptum, written law, and jus non scriptum, unwritten law. The unwritten law was based on custom and usage, while the written law came from legislation and many types of written sources, including edicts and proclamations issued by magistrates, resolutions of the Roman Senate, laws issued by the emperor, and legal disquisitions of prominent lawyers. Roman law concerned itself with every type of legal issue, including contracts, inheritance of property, family law, business organizations, and criminal acts.

Roman law steadily accumulated during the course of the empire, and over time it became contradictory and confusing. In the early sixth century a.d., the Byzantine emperor Justinian I, appointed a commission to examine the body of law and determine what should be kept and what should be discarded. From this effort came the Corpus Juris Civilis, a codification of Roman law that became the chief lawbook of what remained of the Roman Empire.

The decline of the Roman Empire also led to the diminution of interest in Roman law in western Europe. The Corpus was unknown to western scholars for centuries. During the twelfth century, however, Roman law studies revived in western Europe. In the late eleventh century, a manuscript containing part of the Corpus was discovered in Pisa, Italy. The remainder of the compilation was soon recovered, and schools where Roman law could be studied were established in Bologna, Italy, and then elsewhere in Europe. By the twelfth century, commentaries on the Corpus Juris Civilis appeared, and in time men trained in Roman law found posts in secular and ecclesiastical bureaucracies throughout Europe.

As a result, the legal systems of the Catholic Church and of almost every country in Europe were influenced by Roman law. Around the year 1140, the scholar Gratian prepared the Concordance of Discordant Canons, or Decretum. The Decretum was the largest and best-organized compendium of canon (church) law up to that time. Gratian used the Corpus Juris Civilis as his model, and later canonists studying the Decretum used the same methods that Roman lawyers applied to the Corpus Juris Civilis. Many scholars became masters of both Roman and canon law.

Among the nations of western Europe, England, which had already established a viable common-law tradition and a system of royal courts by the time that Roman law became accessible, felt the impact of the revival of Roman law the least. Nevertheless, English law drew upon Roman admiralty law, and the crimes of forgery and libel were based on Roman models. English ecclesiastical courts applied canon law, which was based on Roman law, and the universities of Oxford and Cambridge taught canon and Roman law. Scholars have noted the similarities between the Roman and English actions of trespass, and the equitable method of injunction may have been derived from canon law. Much of western European commercial law, which contained Roman law, became part of English law without much change.

The legal systems of most continental European nations owe their basic structures and categories to Roman law. Scholars point to several reasons for this "reception" of Roman law. In some areas such as southern France where remnants of Roman law had survived the collapse of the Roman Empire, the Corpus Juris Civilis helped to explain the institutions that were already in existence. More important in ensuring the reception of Roman law were the political principles that it contained. Law that had been produced in a centralized state under a sovereign emperor could be used to buttress the arguments of the European rulers as they struggled to assert their sovereignty over the feudal nobility.

At the same time that many of these rulers were consolidating their power, they were also expanding royal administration. This created new positions in government that often were filled by men with training in Roman law. Such men compiled collections of unwritten customs, drafted statutes, and presided over the courts, all of which provided opportunities for the penetration of Roman law.

Roman law did not displace local customs. Instead, its influence was subtle and selective. A compiler of unwritten German customs might arrange the collection according to Roman principles of organization. A royal judge confronted with an issue on which customs of different regions in the kingdom disagreed might turn to Roman law, the only law in many cases that was common to the entire kingdom. Similarly, Roman law could be used when local customs offered no solutions. For example, the Roman law of contracts was particularly influential because European customary law had developed in an agrarian economy and was often inadequate for an economy in which commerce played an increasingly larger role.

After 1600 the reception of Roman law slowed in most countries but did not entirely disappear. In nineteenth-century Europe, the Corpus Juris Civilis provided inspiration for several codifications of law, notably the French Code Napoléon of 1804, the Austrian code of 1811, the German code of 1889, and the Swiss codes of 1889 and 1907. Through these codes, elements of Roman law spread beyond Europe. The Code Napoléon served as a model for codes in Louisiana, Québec, Canada, and most of the countries of Latin America. German law influenced Hungarian, Brazilian, Japanese, and Greek law, and Turkey borrowed from Swiss law. In addition, the law of both Scotland and the Republic of South Africa derives from Roman law.

Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the Uniform Commercial Code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation.

See: Corpus Juris Civilis; Napoleonic Code.

Wikipedia: Roman law

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Not to be confused with civil law legal systems, which are descended from Roman law.

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The term Roman law denotes the legal system of ancient Rome, and the legal developments which occurred before the seventh century AD — when the Roman–Byzantine state adopted Greek as the official lingua franca. The development of Roman law comprises more than a thousand years of jurisprudence — from the Twelve Tables (ca. 449 BC) to the Corpus Juris Civilis (AD 529–34) ordered by Emperor Justinian I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (330–1453), and also served as a basis for legal practice in continental Europe, as well as in Ethiopia, Japan, and most former colonies of European nations, including Latin America.

Introduction

Historically, “Roman law” also denotes the legal system applied in most of Western Europe, until the end of the 18th century. In Germany, Roman law practice remained longer, having been the Holy Roman Empire (962–1806); thus the great influence upon the civil law systems in Europe. Moreover, the English and North American Common law also were influenced by Roman law, notably in the Latinate legal glossary — stare decisis, culpa in contrahendo, pacta sunt servanda.^[1] In contrast, Eastern Europe, though influenced by the Byzantine Empire, were not much influenced by the jurisprudence of the Corpus Juris Civilis; however, they did accept the Roman influence of the Farmer's Law.

Roman legal 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, i.e. the ritualpractice 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".^[2] It is believed that Roman Law is rooted in the Etruscan religion, emphasising ritual.^[3]

The Twelve Tables

Main article: Twelve Tables

The first legal text is the Law of the Twelve Tables, dating from mid-fifth 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.^[4] 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.^[4] 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.^[4] 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.^[4]

Modern scholarship tends 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.^[4] Furthermore, the question on the Greek influence found in the early Roman Law is 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.^[4] The original text of the XII Tablets has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Celts in 387 BC.^[4]

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

Main articles: Lex Canuleia, Lex Hortensia, and Lex Aquilia

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 (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 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 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 (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, 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 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 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 or the German BGB.

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.

Roman law substance

Concepts

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. Ius 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 - 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). 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 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.

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.

Public law

Main articles: Ius publicum, Constitution of the Roman Republic, and Res publica

Cicero, author of the classic book The Laws attacks Catilina, a traitor to the Republic, 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. The belief in a surviving constitution lasted well into the life of the Roman Empire.

Private law

Main articles: Ius privatum, Stipulatio, and Rei vindicatio

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) in order 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.

Roman status

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

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

Main articles: Corpus Juris Civilis and Byzantine law

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^[5]. 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 descendents, by acknowledging that persons in potestate, the descendents, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law.^[5] 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.^[5]

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 also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.

Roman law in the West

Main articles: Early Germanic law and Anglo-Saxon law

In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. Law codes were edicted by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, 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 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 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 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 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.

Colonial expansion spread the civil law system and European civil law has been adopted in much of Latin America as well as in parts of Asia and Africa.^[6]

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.

References

^ In Germany, Art. 311 BGB
^ "Roman Law". Catholic Encyclopedia. New York: Robert Appleton Company. 1913. http://en.wikisource.org/wiki/Catholic_Encyclopedia_(1913)/Roman_Law.
^ Jenő 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.
^ ^a ^b ^c ^d ^e ^f ^g "A Short History of Roman Law", Olga Tellegen-Couperus pp. 19–20.
^ ^a ^b ^c "A Short History of Roman Law" By Olga Tellegen-Couperus, Tellegen-Couper
^ "Civil law (Romano-Germanic)". Encyclopædia Britannica.

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