ROMAN LAW is the legal system of ancient
After the dissolution of the Western
_Roman law_ also denotes the legal system applied in most of 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 .
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 common sense.
* _IUS SCRIPTUM AND IUS NON SCRIPTUM _ – meaning written and
unwritten law, respectively. In practice, the two differed by the
means of their creation and not necessarily whether or not they were
written down. The _ius scriptum_ was the body of statute laws made by
the legislature. The laws were known as _leges_ (lit. "laws") and
_plebiscita_ (lit. "plebiscites," originating in the
). Roman lawyers would also include in the _ius scriptum_ the edicts
of magistrates (_magistratuum edicta_), the advice of the Senate
(_Senatus consulta_), the responses and thoughts of jurists (_responsa
prudentium_), and the proclamations and beliefs of the emperor
(_principum placita_). _Ius non scriptum_ was the body of common laws
that arose from customary practice and had become binding over time.
* _IUS COMMUNE AND IUS SINGULARE _ – _Ius singulare_ (singular
law) is special law for certain groups of people, things, or legal
relations (because of which it is an exception from the general rules
of the legal system), unlike general, ordinary, law (_ius commune_).
An example of this is the law about wills written by people in the
military during a campaign, which are exempt of the solemnities
generally required for citizens when writing wills in normal
* _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
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
_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.
Main article: Status in Roman legal system
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. The _ Codex Theodosianus _ (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child _in potestate_ became owner of everything it acquired, except when it acquired something from its father.
The codes of Justinian, particularly the _
Corpus Juris Civilis _
(529-534) continued to be the basis of legal practice in the Empire
throughout its so-called _Byzantine _ history. Leo III the Isaurian
issued a new code, the _Ecloga_, in the early 8th century. In the 9th
century, the emperors
Basil I and
Leo VI the Wise commissioned a
combined translation of the Code and the Digest, parts of Justinian's
codes, into Greek, which became known as the _Basilica_ .
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
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
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
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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