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Roman Law
Roman law
is the legal system of ancient Rome. As used in the West the
term commonly refers to legal developments prior to the
Roman/Byzantine state's adopting Greek as its official language
in the 7th century. As such 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 as well as in Ethiopia.
Introduction
Roman law in a broad sense refers not only to the legal system
of ancient Rome, but also to the law that was applied throughout
most of Western 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.
Interestingly the Eastern European countries, though heavily
influenced by the Byzantine Empire from which the Corpus Juris
Civilis came, were not significantly influenced by the Corpus.
They were, however, influenced to some degree by the Roman
Farmer's Law.
Roman legal development
Before the Twelve Tables (754–201 BC), private law consisted of
the 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, such as the highly-ritualised 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 has been suggested that 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.
The Twelve Tables
It is impossible to know exactly when the Roman legal system
began. The first legal text, the content of which is known to us
in some detail, is the law of the twelve tables, which date from
the middle of the 5th century BC. According to Roman historians,
the plebeian tribune C. Terentilius Arsa proposed that the law
should be written down in order to prevent magistrates from
applying the law in an arbitrary fashion. After eight
years of struggle the plebeians convinced the patricians to send
a delegation to Athens to copy out the Laws of Solon. In
addition, they sent delegations to other cities in Greece in
order to learn about their legislation.. In 451 BC, ten Roman
citizens were chosen to record the laws (decemviri legibus
scribundis). For the period in which they performed this task,
they were given supreme political power (imperium), while the
power of the magistrates was restricted. In 450 BC, the
decemviri produced of the laws on ten tablets (tabulae), but was
regarded unsatisfactory by the plebeians. A second decemvirate
is said to have added two further tablets in 449 BC. The new Law
of the XII Tables was approved by the people's assembly.
Modern scholarship tends 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 Law
is still much discussed. Many scholars consider it unlikely that
the patricians sent an official delegation to Greece, as the
Roman historians believed. Instead, those scholars suggest, the
Romans acquired Greek legislations from the Greek cities of
Magna Graecia, the main portal between the Roman and Greek
worlds. . The original text of the XII Tablets has not been
preserved. The tablets were probably destroyed when Rome was
conquered and burned by the Celts in 387 BC.
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 contain a 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
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.
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,
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).
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.
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