Roman Law. The Roman heritage.

Plan:
1. The early development of Roman Law.
2. The three divisions of Rome Law.
3. The natural law.
4. Comparison of Rome with the modern world.
5. The influence of Roman civilization.
6. Rome’s role as conveyer of Greek civilization.

There is general agreement that one of the most important legacies which the
romans left to succeeding cultures was their system of law. This resulted from a
gradual evolution which began roughly with the publication of the Twelve Tables
about 450 B.C. In the later centuries of the Republic Law of the Twelve Tables was
transformed by the growth of new precedents and principles. These emanated
from different resources: form changes in custom, from the teachings of the
Stories, from the decisions of judges, but especially form the edicts of the
praetors , magistrates, who had authority to define and interpret the law in a
particular suit and issue instructions to judges.

Roman law attained its highest stage of development under the principate. This
was the result in part of the extension of the law over a wider field of jurisdiction,
over the lives and properties of the aliens in strange environments, as well as over
the citizens of Italy. But the major reason was the fact that Augustus and his
successors gave to certain eminent jurists the right to deliver opinions on the
legal issues of cases under trial in the courts. The most prominent of the men thus
designated form time to time were Gaius, Ulpian, Papinian and Paulus. Although
most of them held high judicial office, they had gained their reputations primarily
as lawyers and writers on legal subjects. The responses of these jurists came to
embody a science and philosophy of law and were accepted as the basis of
Roman jurisprudence.

The Roman law as it was developed under the influence of the jurists comprised
three great branches or divisions: the civil law, the law of peoples and the natural
law. The civil law was the law of Rome and its citizens.

The major cultural trend of late antique history was the spread and triumph of
Christianity, throughout the Roman world. At first Christianity was just one of
several varieties of other worldlyism which appealed to increasing numbers of
persons during the later empire. But in the fourth century it was adopted as the
Roman state religion and thereafter became one of the greatest shaping forces in
the development of the West. While Christianity was spreading, the Roman
Empire was indubitably declining. Central to this decline was a contraction of the
urban life on which the empire had been based. As the empire began to
experience severe pressures, urban contraction was most pronounced in the
European northwest because city civilization there was least deeply rooted and
most distant from the empire’s major trade and communication lifeline on the
Mediterranean. Contraction was also felt in the parts of the west that were closer
to the Mediterranean because western cities depended far more on declining
agricultural production that eastern ones which relied more on trade in luxury
goods and industry. Consequently the entire period saw a steady shift in the
weight of civilization and imperial government from west to East. The most visible
manifestations of this shift were the German successors of the fifth century.
These surely helped open a new chapter in Western political history, but their
immediate impact should not be exaggerated. Even with the influx of Germans,
Roman institutions continued to decline gradually. Particularly in areas that were
on a close to the Mediterranean, Roman city life persisted, albeit with steadily
declining vigor, until the Mediterranean was no longer a Roman lake.

Before we (imagine) examine the emergence and triumph of Christianity, it is best

to survey the nature of the government and society in which the new religion
became a dominant force.

The fifty years of chaos that threatened to destroy Rome in the third century
were ended by the energetic work of a remarkable soldier named Diocletian,
who ruled as emperor from 284 to 305. Conscious of some of the more obvious
problems that had undone his predecessors, Diocletian embarked on a number of
fundamental, political and economic reforms. Recognizing that the dominance of
the army in the life of the state had hitherto been too great, he introduced
measures to separate military from civilian administrative chains of command.
Aware that new pressures, both external and internal, had made it nearly possible
for one man to govern the entire Roman empire, he divided his realm in half-
granting the western part to a trusted colleague Maximian, who reorganized
Diocletian as the senior ruler. The two then chose lieutenants, called Caesars, to
govern large subsections of their territories. This system was also meant to
provide for an orderly succession, for the Caesar’s were supposed to inherit the
major rule of either East or West and then appoint new Caesar’s in their stead. In
the economic sphere Diocletian stabilized badly debased currency, introduced a
new system of taxation, and issued legislation designed to keep agricultural
workers and town-dwellers at their jobs so that the basic work necessary to
support the empire would continue to be done.

Although Diocletian’s program of reorganization was remarkably successful in

restoring an empire that had been on the verge of expiring, it also transformed
the empire by “Orientalizing” it in three primary and lasting ways. Most literally,
Diocletian began a geographical orientalization of the empire by shifting its
administrative weight toward the East. Since he was a “Roman” emperor we must
assume that he ruled from Rome, but in fact between 284 and 303 he was never
there, ruling instead from Nicomedia a city in modern-day Turkey. Although
subjected to new interpretations, the law of the great jurists became an
important part of the Code of Justinian and was that handed down to the Middle
Ages and modern times, American judges frequently cite maxims originally
invented by Gains or Ulpian. Further the legal system of nearly all continental,
European countries today incorporate much of the Roman law. This law was one
of the grandest of the Roman’s achievements and reflected their genius for
governing a vast and diverse empire. It should not be forgotten either that Roman
literary achievements furnished much of the inspiration for the revival of learning
that spread over Europe in the twelfth century and reached to the zenith in the
Renaissance. Perhaps not so well known is the fact that the organization of the
Catholic church, to say nothing of part of its ritual, was adopted from the
structure of the Roman state and the complex of the Roman religion. For
example: the pope still bears the title of supreme pontiff, which was used to
designate the authority of the emperor as head of civic religion.

Most important of all Rome’s contributions to the future was the transmission of
Greek civilization to the European West. The development in Italy of a culture
that was highly suffused by Greek ideals from the second century B.C. onward
was in itself an important counterweight to the earlier predominance of Greek-
oriented civilization in the East. Then, following the path of Julius Caesar, this
culture advanced still further west. Before the coming of Rome the culture of
north-western of Europe (modern France, the Benelux countries, western and
southern Germany and England) was tribal. Rome brought cities and Greek ideas,
above all conceptions of human freedom and individual autonomy that went
along with the development of highly differentiated urban life.
Roman history is the real beginning of Western history as we now know it.

Roman law is the legal system of ancient Rome, including Roman Military

Jurisdiction and the legal developments spanning over a thousand years
of jurisprudence, from the Twelve Tables (c. 449 BC), to the Corpus Juris Civilis(AD
529) ordered by Eastern Roman Emperor Justinian I. The historical importance of
Roman law is reflected by the continued use of Latin legal terminology in many
legal systems influenced by it.

After the dissolution of the Western Roman Empire, the Roman law remained in
effect in the Eastern Roman Empire. From the 7th century onward, the legal
language in the East was Greek.

Roman law also denotes the legal system applied in most of Western Europeuntil
the end of the 18th century. In Germany, Roman law practice remained in place
longer under the Holy Roman Empire (963–1806). Roman law thus served as a
basis for legal practice throughout Western continental Europe, as well as in most
former colonies of these European nations, including Latin America, and also
in Ethiopia. English and North American common law were influenced also by
Roman law, notably in their Latinate legal glossary (for example, stare
decisis, culpa in contrahendo, pacta sunt servanda).[1] Eastern Europe was also
influenced by the jurisprudence of the Corpus Juris Civilis, especially in countries
such as medieval Romania (Wallachia, Moldavia, and some other medieval
provinces/historical regions) which created a new system, a mixture of Roman
and local law. Also, Eastern European law was influenced by the "Farmer's Law"
of the medieval Byzantine legal system.

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 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 .

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. The law of this
period is often referred to as the 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 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.

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 United States, originate from ideas found in the Roman
constitution.

The constitution of the Roman Republic was not formal or even official. Its

constitution was largely unwritten, and was constantly evolving throughout the
life of the Republic. Throughout the 1st century BC, the power and legitimacy of
the Roman constitution was progressively eroding. Even Roman constitutionalists,
such as the senator Cicero, lost a willingness to remain faithful to it towards the
end of the republic. When the Roman Republic ultimately fell in the years
following the Battle of Actium and Mark Antony's suicide, what was left of the
Roman constitution died along with the Republic. The first Roman
Emperor, Augustus, attempted to manufacture the appearance of a constitution
that still governed the Empire. The belief in a surviving constitution lasted well
into the life of the Roman Empire.