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Roman law

2007 Schools Wikipedia Selection. Related subjects: Ancient History,
Classical History and Mythology; British History 1500 and before (including
Roman Britain)

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      Roman Kingdom
      753 BC – 510 BC
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   Roman law is the legal system of ancient Rome. The development of Roman
   law covers more than one thousand years from the law of the twelve
   tables (from 449 BC) to the Corpus Juris Civilis of Emperor Justinian I
   (around 530). Roman law as preserved in Justinian's codes became the
   basis of legal practice in the Byzantine Empire and—later—in
   continental Europe.

   According to Jenő Szmodis's research (2005) the ancient roots of the
   Roman Law derive directly from the Etruscan religion, which puts great
   emphasis on the rituality and is rather formality-centred concerning
   its nature. As evidence, Szmodis drafts the structure of the bi-rooted
   Roman culture (Etruscan and Italian origin), then it verifies its
   Etruscan descent through the description of certain phenomena and
   institutions. (J. Szmodis: The Reality of the Law - From the Etruscan
   Religion to the Postmodern Theories of Law; Ed. Kairosz, Budapest,
   2005.; http://www.jogiforum.hu/publikaciok/231 )

   Using the term Roman law in a broader sense, one may say that Roman law
   is not only the legal system of ancient Rome but the law that was
   applied throughout most of Europe until the end of the 18th century. In
   some countries like Germany the practical application of Roman law
   lasted even longer. For these reasons, many modern civil law systems in
   Europe and elsewhere are heavily influenced by Roman law. This is
   especially true in the field of private law. Even the English and North
   American Common law owes some debt to Roman law although Roman law
   exercised much less influence on the English legal system than on the
   legal systems of the continent The influence of Roman law is shown by
   the wealth of legal terminology, retained by all legal systems, like
   stare decisis, culpa in contrahendo or pacta sunt servanda.

Development of Roman law in antiquity

   Romans did not have a tendency towards codified law. That is why the
   only codifications of Roman law are found at the beginning ( Lex
   Duodecim Tabularum, or Twelve Tables) and at the end ( Codex
   Theodosianus and Justinian's Corpus Iuris Civilis) of Roman legal
   history.

Archaic period

   The private law of this time (754 - 201 BC) was old Roman civil law
   (ius civile Quiritium), which applied only to Roman citizens. It was
   closely bonded to religion and it was undeveloped with attributes of
   strict formalism, symbolism and conservatism.

   It is impossible to give an exact date for the beginning of the
   development of Roman law. The first legal text the content of which is
   known to us in some detail is the law of the twelve tables. It was
   drafted by a committee of ten men (decemviri legibus scribundis) in the
   year 449 BC. The fragments which have been preserved show that it was
   not a law code in the modern sense. It did not aim to provide a
   complete and coherent system of all applicable rules or to give legal
   solutions for all possible cases. Rather, the twelve tables contain a
   number of specific provisions designed to change the customary law
   already in existence at the time of the enactment. The provisions
   pertain to all areas of law. However, the largest part seems to have
   been dedicated to private law and civil procedure.

   The important law sources of this time are results of class struggle
   between patricians and plebeians. As the result of this struggle "Law
   of twelve tables" has been made. Other laws include Lex Canuleia - 445
   BC (which allowed the marriage- ius connubii- between patricians and
   plebeians), Leges Licinae Sextiae - 367 BC (made restrictions on
   possession of public lands -ager publicus-, and also made sure that one
   of consuls is plebeian), Lex Ogulnia - 300 BC (plebeians received
   access to priest posts), and Lex Hortensia - 287 BC (verdicts of
   plebeian assemblies -plebiscita- now bind all people).

   Another important statute from the Republican era is the lex Aquilia of
   286 BC, which may be regarded as the root of modern tort law. However,
   Rome’s most important contribution to European legal culture was not
   the enactment of well-drafted statutes, but the emergence of a class of
   professional jurists and of a legal science. This was achieved in a
   gradual process of applying the scientific methods of Greek philosophy
   to the subject of law—a subject which the Greeks themselves never
   treated as a science.

   Traditionally, the origins of Roman legal science are connected to
   Gnaeus Flavius: Flavius is said to have published around the year 300
   BC the formularies containing the words which had to be spoken in court
   in order to begin a legal action. Before the time of Flavius, these
   formularies are said to have been secret and known only to the priests.
   Their publication made it possible for non-priests to explore the
   meaning of these legal texts. Whether or not this story is credible,
   jurists were active and legal treatises were written in larger numbers
   the 2nd century BC. Among the famous jurists of the republican period
   are Quintus Mucius Scaevola who wrote a voluminous treatise on all
   aspects of the law, which was very influential in later times, and
   Servius Sulpicius Rufus a friend of Marcus Tullius Cicero. Thus, Rome
   had developed a very sophisticated legal system and a refined legal
   culture when the Roman republic was replaced by the monarchical system
   of the principate in 27 BC.

Pre-classical period

   In the period between about 201 to 27 BC, we can see the development of
   more flexible law to match the needs of the time. In addition to the
   old and formal ius civile a new juridical class is created: the ius
   honorarium (so called because praetors were central to the creation of
   this new body of law and because the Praetorship was an honorary
   service). With this new law the old formalism is being abandoned and
   new more flexible principles of ius gentium are used.

   The adaptation of law to new needs was given over to juridical
   practice, to magistrates, and especially to the praetors. A praetor was
   not a legislator and did not technically create new law when he issued
   his edicts (magistratuum edicta). In fact, however, the results of his
   rulings enjoyed legal protection (actionem dare) and were in effect
   often the source of new legal rules. A Praetor's successor was not
   bound by the edicts of his predecessor, however, he did take rules from
   edicts of his predecessor that had proved to be useful. In this way a
   constant content was created that proceeded from edict to edict
   (edictum traslatitium).

   Thus, over the course of time, parallel to the civil law and
   supplementing and correcting it, a new body of praetoric law emerged.
   In fact, praetoric law was so defined by the famous Roman jurist
   Papinian (Amilius Papinianus - died at 212 AD):" Ius praetorium est
   quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi
   iuris civilis gratia propter utilitatem publicam" ("praetoric law is
   that law introduced by praetors to supplement or correct civil law for
   public benefit"). Ultimately, civil law and praetoric law are fused in
   the Corpus Juris Civilis

Classical Roman law

   The first 250 years of the current era are the period during which
   Roman law and Roman legal science reached the highest degree of
   perfection. The law of this period is often referred to as classical
   period of Roman law. The literary and practical achievements of the
   jurists of this period gave Roman law its unique shape.

   The jurists worked in different functions: They gave legal opinions at
   the request of private parties. They advised the magistrates who were
   entrusted with the administration of justice, most importantly the
   praetors. They helped the praetors draft their edicts, in which they
   publicly announced at the beginning of their tenure, how they would
   handle their duties, and the formularies, according to which specific
   proceedings were conducted. Some jurists also held high judicial and
   administrative offices themselves.

   The jurists also produced all kinds of legal commentaries and
   treatises. Around AD 130 the jurist Salvius Iulianus drafted a standard
   form of the praetor’s edict, which was used by all praetors from that
   time onwards. This edict contained detailed descriptions of all cases,
   in which the praetor would allow a legal action and in which he would
   grant a defense. The standard edict thus functioned like a
   comprehensive law code, even though it did not formally have the force
   of law. It indicated the requirements for a successful legal claim. The
   edict therefore became the basis for extensive legal commentaries by
   later classical jurists like Paulus and Domitius Ulpianus .

   The new concepts and legal institutions developed by pre-classical and
   classical jurists are too numerous to mention here. Only a few examples
   are given here:
     * Roman jurists clearly separated the legal right to use a thing
       (ownership) from the factual ability to use and manipulate the
       thing (possession). They also found the distinction between
       contract and tort as sources of legal obligations.

     * The standard types of contract (sale, contract for work, hire,
       contract for services) regulated in most continental codes and the
       characteristics of each of these contracts were developed by Roman
       jurisprudence.

     * The classical jurist Gaius (around 160) invented a system of
       private law based on the division of all material into personae
       (persons), res (things) and actiones (legal actions). This system
       was used for many centuries. It can be recognized in legal
       treatises like William Blackstone's Commentaries on the Laws of
       England and enactments like the French Code civil.

Post-classical law

   By the middle of the 3rd century the conditions for the flourishing of
   a refined legal culture had become less favorable. The general
   political and economic situation deteriorated. The emperors assumed
   more direct control of all aspects of political life. The political
   system of the principate, which had retained some features of the
   republican constitution began to transform itself into the absolute
   monarchy of the dominate. The existence of a legal science and of
   jurists who regarded law as a science, not as an instrument to achieve
   the political goals set by the absolute monarch did not fit well into
   the new order of things. The literary production all but ended. Few
   jurists after the mid-third century are known by name. While legal
   science and legal education persisted to some extent in the eastern
   part of the empire, most of the subtleties of classical law came to be
   disregarded and finally forgotten in the west. Classical law was
   replaced by so-called vulgar law. Where the writings of classical
   jurists were still known, they were edited to conform to the new
   situation.

Important concepts of Roman law

Ius Civile, Ius Gentium, and Ius Naturale

   The Ius Civile ("Citizen law") originally (Ius civile Quiritium) was
   the body of common laws that applied to Roman citizens and the
   Praetores Urbani (sg. Praetor Urbanus) were the individuals who had
   jurisdiction over cases involving citizens.

   The Ius Gentium ("Law of peoples") was the body of common laws that
   applied to foreigners, and their dealings with Roman citizens. The
   Praetores Peregrini ( sg. Praetor Peregrinus) were the individuals who
   had jurisdiction over cases involving citizens and foreigners.

   Some Roman jurists introduced Ius naturale as a further category. It
   encompassed natural law, the body of laws that were considered common
   to all beings. The Jurists wondered why the "Ius Gentium" was in
   general accepted by all people living in the empire. Their conclusion
   was that these laws made sense to a reasonable person and thus were
   followed. All laws which would make sense to a normal person were
   called Jus naturale. Slavery for example was part of the empire-wide
   Jus Gentium because Slavery was known and accepted as a fact in all
   parts of the by then known world, nevertheless slavery does not make
   sense to a reasonable person. Forcing people to work for others was not
   natural. So, slavery was part of the "jus Gentium" but not of the "Ius
   Naturale".

Ius Scriptum and Jus Non Scriptum

   The terms Jus 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 assemblies]). In them, Roman
   lawyers would include:
     * The edicts of magistrates (magistratuum edicta),
     * The conclusions of the Senate (Senatus consulta),
     * The responses and thoughts of jurists (responsa prudentium), and
     * The proclamations and beliefs of the emperor (principum placita).

   The Ius Non Scriptum was the body of common laws that arose from
   customary practice and had become binding over time.

Jus Publicum and Jus Privatum

   Jus 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.

   Jus publicum was also used to describe obligatory legal regulations
   (today called Jus cogens- this term is applied in modern International
   Law to indicate pre-emptory 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 Jus
   dispositivum, and they are used when party shares something and are not
   in opposition.

Jus Commune and Jus Singulare

   Jus 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 (Jus commune). An example of this is the law about wills
   written by people in the military during a campaign, which are exempt
   of the solemnities generally required for citizens when writing wills
   in normal circumstances.

Rights of the people (status)

   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

   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 5 judges.
   First, the parties selected 7 from a list, and from those 7 the 5 were
   chosen randomly. They were called recuperatores.

   No-one had a legal obligation to judge a case, which was understood to
   be a burden. However, there was a moral obligation to do so, what was
   known as "officium". The judge had great latitude in the way he
   conducted the litigation. He considered all the evidence and ruled in
   the way that seemed just. Because the judge was not a jurist or a legal
   technician, he often consulted a jurist about the technical aspects of
   the case, but he was not bound by the jurist's reply. At the end of the
   litigation, if things were not clear to him, he could refuse to give a
   judgment, by swearing that it wasn't clear. Also, there was a maximum
   time to issue a judgment, which depended on some technical issues (type
   of action, etc).

   Later on, with the bureaucratization, this procedure disappeared, and
   was substituted by the so-called "extra ordinem" procedure, also known
   as cognitory. The whole case was reviewed before a magistrate, in a
   single phase. The magistrate had obligation to judge and to issue a
   decision, and the decision could be appealed to a higher magistrate.

Afterlife of Roman law

Roman law in the East

   When the centre of the empire was moved to the Greek East in the 4th
   century, many legal concepts of Greek origin appeared in the official
   Roman legislation. The influence is visible even in the law of persons
   or of the family, which is traditionally the part of the law that
   changes least. For example Constantine started putting restrictions on
   the ancient Roman concept of patria potestas, by acknowledging that
   persons in potestate could have proprietary rights. He was apparently
   making concessions to the much stricter concept of paternal authority
   under Greek-Hellenistic law. 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. In the Byzantine Empire, the codes of Justinian became the
   basis of legal practice. Leo III the Isaurian issued a new code, the
   Ecloga, in the early 8th century. In the 9th century, the emperors
   Basil I and Leo VI the Wise commissioned a combined translation of the
   Code and the Digest into Greek, which became known as the Basilica.
   Roman law as preserved in the codes of Justinian and in the Basilica
   remained the basis of legal practice in Greece and in the courts of the
   Eastern Orthodox Church even after the fall of the Byzantine empire and
   the conquest by the Turks.

Roman law in the West

   In the west, Justinian's authority didn't go farther than certain
   portions of the Italian and Hispanic peninsulas. Law codes were edicted
   by the Germanic kings, however, the influence of earlier Eastern Roman
   codes on some of these is quite discernible. In many cases, ethnic
   Roman citizens continued to be governed by Roman laws for quite some
   time, even while members of the various Germanic tribes were governed
   by their own respective codes. The Code and the Institutes themselves
   were known in Western Europe (though they had little influence on legal
   practice in the early Middle Ages), but the Digest was largely ignored
   for several centuries. Around 1070, a manuscript of the Digest was
   rediscovered in Italy. This was done mainly through the works of
   glossars who wrote their comments between lines (glossa interlinearis),
   or in the form of marginal notes (glossa marginalis). From that time,
   scholars began to study the ancient Roman legal texts, and to teach
   others what they learned from their studies. The centre of these
   studies was Bologna. The law school there gradually developed into one
   of Europe’s first universities.

   The students, who were taught Roman law in Bologna (and later in many
   other places) found that many rules of Roman law were better suited to
   regulate complex economic transactions than the customary rules, which
   were applicable throughout Europe. For this reason, Roman law, or at
   least some provisions borrowed from it, began to be re-introduced into
   legal practice, centuries after the end of the Roman empire. This
   process was actively supported by many kings and princes who employed
   university-trained jurists as counselors and court officials and sought
   to benefit from rules like the famous Princeps legibus solutus est (The
   sovereign is not bound by the laws).

   There have been several reasons why Roman law was favored in the Middle
   Ages. It was because Roman law regulated the legal protection of
   property and the equality of legal subjects and their wills, and
   because it prescribed the possibility that the legal subjects could
   dispose their property through testament.

   By the middle of the 16th century, the rediscovered Roman law dominated
   the legal practice in most European countries. A legal system, in which
   Roman law was mixed with elements of canon law and of Germanic custom,
   especially feudal law, had emerged. This legal system, which was common
   to all of continental Europe (and Scotland) was known as Ius Commune.
   This Ius Commune and the legal systems based on it are usually referred
   to as civil law in English-speaking countries.

   Only England did not take part in the reception of Roman law. One
   reason for this is the fact 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.
   Later, the fact that Roman law was associated with the Holy Roman
   Empire, the Roman Catholic Church and with absolutism made Roman law
   unacceptable in England. As a result, the English system of common law
   developed in parallel to Roman-based civil law.

   Even so, 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) came into force in 1900.

Roman law today

   Today, Roman law is no longer applied in legal practice, even though
   the legal systems of some states like South Africa and San Marino are
   still based on the old Ius Commune. However, even where the legal
   practice is based on a code, many rules deriving from Roman law apply:
   No code completely broke with the Roman tradition. Rather, the
   provisions of Roman law were fitted into a more coherent system and
   expressed in the national language. For this reason, knowledge of Roman
   law is indispensable to understand the legal systems of today. Thus,
   Roman law is often still a mandatory subject for law students in civil
   law jurisdictions.

   As steps towards a unification of the private law in the member states
   of the European Union are being taken, the old Ius Commune, which was
   the common basis of legal practice everywhere, but allowed for many
   local variants, is seen by many as a model.
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