Roman law

Roman Law is the legal system of ancient Rome. The development of Roman law covers more than a thousand years from the law of the twelve tables (from 449 BC) to the codification 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 Western Europe

The sources of Roman law

Romans did not have tendency towards codified law. That is why the only codifications of Roman law are found at the beginning (Lex Duodecim Tabularum ) and at the end (Corpus Iuris Civilis) of Roman legal history.

Related Topics:
Lex Duodecim Tabularum - Corpus Iuris Civilis

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Civil law

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. The main source of this time is "The law of twelve tables"

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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.

Related Topics:
Private law - Civil procedure

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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 ager publicus, and also made sure that one of counsuls 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).

Related Topics:
Patrician - Plebeian

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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.

Related Topics:
Lex Aquilia - 286 BC - Tort law - Jurist - Greek philosophy

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Traditionally, the origins of Roman legal science are being connected to the story of 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.

Related Topics:
Gnaeus Flavius - 300 BC - 2nd century BC - Quintus Mucius Scaevola - Servius Sulpicius Rufus - Marcus Tullius Cicero - Principate - 27 BC

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Honorary law

In this period (201 - 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.

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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 form edict to edict (edictum tralatitium).

Related Topics:
Magistrates - Praetor

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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.

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Classical Roman law

The first 250 years AD 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 Roman law. The literary and practical achievements of the jurists of this period gave Roman law its unique shape.

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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.

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The jurists also produced all kinds of legal commentaries and treatises. Around 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 Iulius Paulus and Domitius Ulpianus .

Related Topics:
130 - Salvius Iulianus - Iulius Paulus - Domitius Ulpianus

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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:

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• 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.

Related Topics:
3rd century - Dominate

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The introduction of Christianity as state religion under emperor Theodosius II, which lead to the suppression of pagan learning, may have contributed to the deterioration of Roman legal culture.

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