ROMAN LAW is the legal system of ancient
After the dissolution of the Western
* 1 Development
* 2 Substance
* 3 Legacy
* 3.1 In the East * 3.2 In the West * 3.3 Today
* 4 See also * 5 References and sources * 6 Further reading * 7 External links
Twelve Tables (754–449 BC), private law comprised the
Roman civil law (ius civile Quiritium) that applied only to Roman
citizens, and was bonded to religion; undeveloped, with attributes of
strict formalism, symbolism, and conservatism, e.g. the ritual
practice of mancipatio (a form of sale). The jurist Sextus Pomponius
said, "At the beginning of our city, the people began their first
activities without any fixed law, and without any fixed rights: all
things were ruled despotically, by kings". It is believed that Roman
THE TWELVE TABLES
Main article: Twelve Tables
The first legal text is the
Modern scholars tend to challenge the accuracy of Roman historians.
They generally do not believe that a second decemvirate ever took
place. The decemvirate of 451 is believed to have included the most
controversial points of customary law, and to have assumed the leading
functions in Rome. Furthermore, the question on the Greek influence
found in the early Roman
The fragments which did survive show that it was not a law code in the modern sense. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law . Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure .
EARLY LAW AND JURISPRUDENCE
Many laws include Lex Canuleia (445 BC; which allowed the marriage—ius connubii—between patricians and plebeians ), Leges Licinae Sextiae (367 BC; which made restrictions on possession of public lands — ager publicus — and also made sure that one of the consuls was plebeian), Lex Ogulnia (300 BC; plebeians received access to priest posts), and Lex Hortensia (287 BC; verdicts of plebeian assemblies — plebiscita — now bind all people).
Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law . However, Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists (prudentes, sing. prudens, or jurisprudentes) and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.
Traditionally, the origins of Roman legal science are connected to
Gnaeus Flavius . Flavius is said to have published around the year 300
BC the formularies containing the words which had to be spoken in
court to begin a legal action. Before the time of Flavius, these
formularies are said to have been secret and known only to the
priests. Their publication made it possible for non-priests to explore
the meaning of these legal texts. Whether or not this story is
credible, jurists were active and legal treatises were written in
larger numbers 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
In the period between about 201 to 27 BC, we can see the development of more flexible laws to match the needs of the time. In addition to the old and formal ius civile a new juridical class is created: the ius honorarium , which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.
The adaptation of law to new needs was given over to juridical practice, to magistrates , and especially to the praetors . A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare) and were in effect often the source of new legal rules. A Praetor's successor was not bound by the edicts of his predecessor; however, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict (edictum traslatitium).
Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law was so defined by the famous Roman jurist Papinian (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
The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped the praetors draft their edicts , in which they publicly announced at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.
The jurists also produced all kinds of legal punishments. Around AD 130 the jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian . The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here:
* Roman jurists clearly separated the legal right to use a thing (ownership) from the factual ability to use and manipulate the thing (possession). They also 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 .
The Roman Republic had three different branches:
By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the principate , which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate . The existence of a legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in the eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law .
CONCEPT OF LAWS
* IUS CIVILE , IUS GENTIUM , AND IUS NATURALE – the ius civile
("citizen law", originally ius civile Quiritium) was the body of
common laws that applied to Roman citizens and the Praetores Urbani ,
the individuals who had jurisdiction over cases involving citizens.
The ius gentium ("law of peoples") was the body of common laws that
applied to foreigners, and their dealings with Roman citizens. The
Praetores Peregrini were the individuals who had jurisdiction over
cases involving citizens and foreigners. Jus naturale was a concept
the jurists developed to explain why all people seemed to obey some
laws. Their answer was that a "natural law " instilled in all beings a
* IUS SCRIPTUM AND IUS NON SCRIPTUM – meaning written and
unwritten law, respectively. In practice, the two differed by the
means of their creation and not necessarily whether or not they were
written down. The ius scriptum was the body of statute laws made by
the legislature. The laws were known as leges (lit. "laws") and
plebiscita (lit. "plebiscites," originating in the
Plebeian Council ).
Roman lawyers would also include in the ius scriptum the edicts of
magistrates (magistratuum edicta), the advice of the
Ius publicum ,
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
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
Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below.
Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant . If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant . Rei vindicatio was derived from the ius civile , therefore was only available to Roman citizens.
To describe a person's position in the legal system, Romans mostly used the expression togeus. The individual could have been a Roman citizen (status civitatis) unlike foreigners, or he could have been free (status libertatis) unlike slaves, or he could have had a certain position in a Roman family (status familiae) either as the head of the family (pater familias), or some lower member.*alieni iuris-which lives by someone elses law. Two status types were Senator and Emperor.
Main article: Roman litigation
The history of Roman
During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus ). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum. They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list.
No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all the evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.).
Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate.
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. 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.
Codex Theodosianus (438 AD) was a codification of Constantian
laws. Later emperors went even further, until
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 .
IN THE WEST
In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes were issued by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes.
Codex Justinianus and the Institutes of
The students who were taught
There have been several reasons why
By the middle of the 16th century, the rediscovered Roman law
dominated the legal practice of many European countries. A legal
system, in which
Only England and the Nordic countries did not take part in the
wholesale reception of Roman law. One reason for this is that the
English legal system was more developed than its continental
counterparts by the time
The practical application of
Colonial expansion spread the civil law system.
As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune, which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model.
Abalienatio (legal transfer of property)
Auctoritas (power of the sovereign)
Basileus (akin to modern sovereign )
Cessio bonorum (surrender of goods to a creditor)
REFERENCES AND SOURCES
* ^ In Germany, Art. 311 BGB * ^ Herbermann, Charles, ed. (1913). "Roman Law". Catholic Encyclopedia . New York: Robert Appleton Company. * ^ 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. * ^ Cf. Berger, Adolf. Encyclopedic Dictionary of Roman Law. The American Philosophical Society. 1953. p 529. * ^ Jolowicz, H. F. Historical Introduction to the Study of Roman Law. Cambridge University Press. 1967. * ^ A B C "A Short History of Roman Law" By Olga Tellegen-Couperus, Tellegen-Couper * ^ http://www.britannica.com/EBchecked/topic/178179/Ecloga * ^ "Civil law (Romano-Germanic)". Encyclopædia Britannica.
* Berger, Adolf, "Encyclopedic Dictionary of Roman Law", Transactions of the American Philosophical Society, Vol. 43, Part 2., Pp. 476. Philadelphia : American Philosophical Society , 1953. (reprinted 1980, 1991, 2002). ISBN 1-58477-142-9
* W. W. Buckland , A Textbook of Roman
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