Roman law also denoted the legal system applied in most ofWestern Europe until the end of the 18th century. InGermany, Roman law practice remained in place longer under theHoly Roman Empire (963–1806). Roman law thus served as a basis forlegal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia.
English andAnglo-Americancommon law were influenced also by Roman law, notably in their Latinate legal glossary.[1] Eastern Europe was also influenced by the jurisprudence of theCorpus Juris Civilis, especially in countries such as medieval Romania, which created a new legal system comprising a mixture of Roman and local law.
After the dissolution of theWestern Roman Empire, the Roman law remained in effect in theByzantine Empire. From the 7th century onward, the legal language in the East was Greek, with Eastern European law continuing to be influenced byByzantine law.
Development
The juristSextus 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]
Before theTwelve Tables (i.e between 754 and 449 BC), private law comprised the Roman civil law (ius civile Quiritium) that applied only to Roman citizens and was bonded to religion. Theius civile of the time was undeveloped, with attributes of strict formalism, symbolism, and conservatism, for example, as embodied in the ritual practice ofmancipatio. It is believed that Roman law is rooted in theEtruscan religion, emphasizing ritual.[3]
The first legal text of the Roman law is theLaw of the Twelve Tables, dating from the mid-fifth century BC. Theplebeiantribune, 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 thepatricians to send a delegation toAthens to copy theLaws of Solon; they also dispatched delegations to other Greek cities for a like reason.[4]
In 451 BC, according to the traditional story, according toLivy, ten Roman citizens were chosen to record the laws, known as thedecemviri legibus scribundis. While they were performing this task, they were given supreme political power (imperium), whereas the power of the magistrates was restricted.[4] In 450 BC, thedecemviri produced the laws on ten tablets (tabulae), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is allegedly said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly.[4]
Modern scholars tend to challenge the accuracy ofLatin historians. They generally do not believe that a second decemvirate ever took place. The decemvirate of 451 BC is believed to have assumed the leading functions in Rome and included the most controversial points of customary law.[4] Questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Latin historians believed. Rather, the Romans acquired Greek legislations from the Greek cities ofMagna Graecia, the main portal between the Roman and Greek worlds.[4]
The original text of the Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by theGauls 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-existingcustomary law. Although the provisions pertain to all areas of law, the largest part is dedicated toprivate law andcivil procedure.[citation needed]
Among the most consequential laws passed during the earlyRepublic were theLex Canuleia (445 BC), which allowed marriage(conubium) betweenpatricians andplebeians; theLeges Liciinae Sextiae (367 BC), which restricted the amount of public land(ager publicus) that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian;[5] theLex Ogulnia (300 BC), which permitted plebeians to hold certain priestly offices aspontiffs oraugurs; and theLex Hortensia (287 BC), which stated that the determinations of plebeian assemblies(plebiscita) would henceforth be binding on the entirepopulus Romanus, both patricians and plebeians.[6]
Another important statute from the Republican era is theLex Aquilia of 286 BC, which may be regarded as the root of moderntort law.[citation needed]
Jurisprudence
Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professionaljurists (prudentes orjurisprudentes, sing.prudens) and of alegal science. This was achieved in a gradual process of applying the scientific methods ofGreek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.[citation needed]
Traditionally, the origins of Roman legal science are connected toGnaeus Flavius. Around the year 300 BC, Flavius is said to have published 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 before the 2nd century BC. Among the famous jurists of the republican period areQuintus Mucius Scaevola, who wrote an influential and voluminous treatise on all aspects of the law, andServius Sulpicius Rufus, a friend ofMarcus 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 thePrincipate in 27 BC.[citation needed]
Pre-classical period
In the period between about 201 to 27 BC, more flexible laws developed to match the needs of the time. In addition to the old and formalius civile, a new juridical class was created: theius honorarium: "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law."[7] With this new law the old formalism was abandoned, and more flexible principles ofius gentium ("law of the nations") were used.[citation needed]
The adaptation of law to new needs was given over to juridical practice, tomagistrates, and especially to thepraetors. Though the praetors were not legislators and did not technically create new law when he issued hisedicts (magistratuum edicta), 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).[citation needed]
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 juristPapinian (142–212 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 theCorpus Juris Civilis.[citation needed]
The first 250 years of the current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication and influence. The law of this period is often referred to as the "classical period of Roman law".[by whom?] The Roman Republic had three different branches: theAssemblies, theSenate, and theConsuls. The assemblies passed laws and made declarations of war; the Senate controlled the treasury; and the consuls had the highest juridical power.[8]
The jurists worked in different functions, including giving legal opinions at the request of private parties; advising magistrates, especially the praetors; and helping the praetors draft theiredicts, 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.[citation needed]
The jurists also produced various legal punishments. Around 130 AD, the juristSalvius 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 likePaulus andUlpian.[citation needed]
During the pre-classical and classical period, such laws emerged as the separation of ownership and possession; contract and tort as distinct sources of obligations; standard types of contracts (sale, contract for work, hire, contract for services) regulated in most continental codes; theInstitutes of Gaius, which invented a system of private law based on the division of all material intopersonae (persons),res (things) andactiones (legal actions).Gaius's system was used for many centuries, and has been recognized in legal treatises likeWilliam Blackstone'sCommentaries on the Laws of England and enactments like theFrenchCode civil and theGermanBGB.[citation needed]
Post-classical law
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 thePrincipate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of theDominate. The existence of 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. Jurisprudential 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 the so-calledvulgar law of the lateRoman Empire.[citation needed]
When the centre of the Empire was moved to theGreek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation.[9] The influence is visible even in the law of persons or of the family, traditionally the part of the law that changes least. For example,Constantine started putting restrictions on the ancient Roman concept ofpatria potestas, the power held by the male head of a family over his descendants, by acknowledging that personsin potestate, the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law.[9] TheCodex Theodosianus (438 AD) was acodification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a childin potestate became owner of everything it acquired, except when it acquired something from its father.[9]
The codes of Justinian, particularly theCorpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-calledByzantine history.Leo III the Isaurian issued a new code, theEcloga,[10] in the early 8th century. In the 9th century, the emperorsBasil I andLeo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as theBasilica. 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 theEastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with theSyro-Roman law book, also formed the basis for much of theFetha Negest, which remained in force in Ethiopia until 1931.[citation needed]
Substance
The basics of Roman law (in German with English captioning)
Concept of laws
The 2nd-century RomanjuristUlpian, however, divided law into three branches: natural law, which existed in nature and governed animals as well as humans; the law of nations, which was distinctively human; and, civil law, which was the body of laws specific to a people.[11]
Ius civile ("citizen law", originally ius civile Quiritium) was the body of common laws that applied to Roman citizens and thePraetores Urbani, the individuals who had jurisdiction over cases involving citizens.Ius gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. ThePraetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners.Ius naturale ("natural law") was the concept that all persons had a kind of common sense, which the jurists developed to explain why all people seemed to obey some laws.[citation needed]
Ius scriptum ("written law") was the body of statute laws made by the legislature, known asleges (lit.'laws') andplebiscita (lit.'plebiscites', originating in thePlebeian Council). Roman lawyers would also include in theius 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 ("unwritten law") was the body of common laws that arose from customary practice and had become binding over time.[citation needed]
Ius singulare ("singular law") was the special law for certain groups of people, things, or legal relations, as exceptional from the general rules of the legal system. For example, the ius singulare about wills written by people in the military during a campaign exempted them from the solemnities generally required for citizens when writing wills in normal circumstances.Ius commune ("common law") was the general, ordinary, law, as distinct fromius singulare.[citation needed]
Ius publicum ("public law") was the law that protected the interests of the Roman state. Roman criminal law was mostly private, with only the most severe crimes prosecuted by the state.Ius publicum was also used to describe obligatory legal regulations (today calledius cogens).Ius privatum ("private law") was the law that protected individuals, which included personal, property, civil and criminal law as well as the procedural law of judicial proceedings (iudicium privatum).[citation needed]
TheRoman Republic's constitution ormos maiorum ("custom of the ancestors") was an unwritten, informal, and unofficial set of guidelines and principles passed down mainly through precedent, constantly evolving throughout the life of the Republic.[citation needed]
Throughout the 1st century BC, the power and legitimacy of the Roman constitution progressively eroded. Even Roman constitutionalists, such as the senatorCicero, lost a willingness to remain faithful to it towards the end of the Republic. When theRoman Republic ultimatelyfell in the years following theBattle of Actium andMark Antony's suicide, what was left of the Roman constitution died along with the Republic. The firstRoman emperor,Augustus, attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to thePrincipate, e.g., reusing prior grants of greaterimperium to substantiate Augustus' greaterimperium over theimperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of theRoman Empire.[citation needed]
Stipulatio was the basic form ofcontract in Roman law. It was made in the format of question and answer. The precise nature of the contract is disputed.[citation needed]
Rei vindicatio is a legal action by which theplaintiff demands that thedefendant return a thing that belongs to the plaintiff. It was only used when the plaintiff owns the thing, and the defendant somehow impeded the plaintiff's possession of the thing. The plaintiff could also institute anactio furti, a personalaction, to punish the defendant. If the thing could not be recovered, the plaintiff could also claim damages from the defendant with the aid of thecondictio furtiva, another personal action. With the aid of theactio legis Aquiliae, another personal action, the plaintiff could claim damages from the defendant.Rei vindicatio was derived from theius civile, and was only available to Roman citizens.[citation needed]
A person's abilities and duties within the Roman legal system depended on their legalstatus. The individual could have been a Roman citizen (status civitatis), unlike a foreigner; been free (status libertatis), unlike slaves; or 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 "one who lives under someone else's law").[citation needed]
The history of Roman Law can be divided into three systems of procedure:legis actiones, theformulary system, andcognitio extra ordinem. The periods in which these systems were in use overlapped and did not have definitive breaks. Roughly,legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC; the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200); andcognitio extra ordinem was used in post-classical times.[12]
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 of judges known as thealbum 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. Judges had great latitude in the way they conducted 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 of law.
Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-calledextra ordinem procedure, also known as the cognitory system. 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.
Legacy
German legal theoristRudolf von Jhering famously remarked thatancient Rome had conquered the world three times: the first through its armies, the second through its religion, the third through its laws. He might have added: each time more thoroughly.
In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. InLaw codes issued by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is 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.[citation needed]
TheCodex Justinianus,Institutes of Justinian, and the earlier code ofTheodosius II were well-known in Western Europe and served as models for a few of the Germanic law codes. However, theDigest portion was largely ignored for several centuries until around 1070, when a manuscript of theDigest 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 ofmarginal 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 wasBologna. The law school there gradually developed into Europe's first university.[citation needed]
There are several reasons that Roman law was favored in theMiddle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and it prescribed the possibility that the legal subjects could dispose their property through testament. The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than the customary rules 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 likeprinceps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined byUlpian, a Roman jurist).[citation needed]
By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements ofcanon law and of Germanic custom, especiallyfeudal law, had emerged. This legal system, which was common to all of continental Europe (andScotland) was known asIus Commune. ThisIus Commune and the legal systems based on it are usually referred to ascivil law in English-speaking countries.[citation needed]
OnlyEngland and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that theEnglish 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 ofcommon law developed in parallel to Roman-based civil law, with its practitioners being trained at theInns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities ofOxford orCambridge. Elements of Romano-canon law were present in England in theecclesiastical courts and, less directly, through the development of theequity 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 EuropeanIus Commune, came to an end when national codifications were made. In 1804, theFrench 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 (customary) law, and it was calledusus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the Germancivil code (Bürgerliches Gesetzbuch, BGB) went into effect in 1900.[13]
Colonial expansion spread the civil law system.[14]
Today
Legal systems of the world. Blue is based on Roman law.
Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries likeSouth Africa andSan Marino are still based on the oldjus 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 the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students incivil law jurisdictions. In this context, the annualInternational Roman Law Moot Court was developed in order to better educate the students and to network with one another internationally.[15][16][17]
As steps towards a unification of the private law in the member states of theEuropean Union are being taken, the oldjus 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.[citation needed]
^abcdefg"A Short History of Roman Law", Olga Tellegen-Couperus pp. 19–20.
^The Oxford Classical Dictionary, Third Edition. Edited by Simon Hornblower and Antony Spawforth, Oxford University Press, 1996. Entry:Licinius Stolo, Gaius
^The Oxford Classical Dictionary, Third Edition. Edited by Simon Hornblower and Antony Spawforth, Oxford University Press, 1996. Entry:Lex
^Wolff, Hans Julius, 1902-1983. (1951).Roman law : an historical introduction. Norman: University of Oklahoma Press. p. 208.ISBN0585116784.OCLC44953814.{{cite book}}: CS1 maint: multiple names: authors list (link) CS1 maint: numeric names: authors list (link)
Buckland, William Warwick (1963).A Textbook of Roman Law from Augustus to Justinian. Revised by P. G. Stein (3rd ed.). Cambridge, UK: Cambridge University Press.
Daube, David (1969).Roman Law: Linguistic, Social and Philosophical Aspects. Edinburgh: Edinburgh Univ. Press.ISBN9780852240519.
De Ligt, Luuk (2007). "Roman Law and the Roman Economy: Three Case Studies".Latomus.66 (1):10–25.JSTOR41545348.
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