CIVIL LEGAL

SYSTEM
1. Historical development
2. Key features
GENERAL INTRODUCTION
 This legal family comprises of those legal
science that has developed on the basis
of Roman ius civile (private law)
 Originated in Europe from the 12th
century
 It is also referred to as Romano –
Germanic.
 FOUR DIFFERENT POLITICAL
STRUCTURES IN ROME
 Rome had four types of government
a) The Monarchical (B.C. 753 to B.C.
509)
b) The Republican (B.C. 509 to B.C.
31)
c) The Imperial / Principate, (B.C. 31
to A.D. 476)
d) Dominate (AD 284 – AD 476)
 PHASES IN ROMAN LEGAL
DEVELOPMENT
1. Early Roman law (753 BC -250 BC)
2. Pre-classical period of Roman Law (
250BC – 27 BC)
3. Classical period of Roman law (27
BC – AD 284)
4. Post classical period of Roman law
(AD 284 – AD 565)
THE MONACHY / PERIOD OF
THE KINGS(753 BC - 509 BC)
ORIGINS OF ROMAN KINGDOM
 Legend holds that Rome was founded in 753 BCE
on the banks of the river Tiber by Romulus , the
first of seven kings to rule Rome
 SOCIAL AND POLITICAL STRUCTURE
 Small community, agrarian society, subsistence farming
 Roman king was an autocratic ruler, and also a high
priest
 2 elements of Roman society :
1. the familia and
2. the gens (clan/tribes).
 A familia consisted of all those persons who were in some
way subject to the power of a pater familias.
 Pater familias had extensive power (patria potestas)
 Gens could hold meetings and pass resolutions that were
binding on the members, and they had a common cult.
 Politically Rome was divided into
30/3??? groups, curiae, each
comprising of 10 gentes = assembly
(comitia curiata)
 Voted per curia as a voting unit
 No legislative powers
 Senate???? – rich, landed nobility
 Two classes of society emerged towards end of
Monarchy:
1. Patricians = original Roman family, nobility , land
owners. Entitled to serve as magistrates and priests
2. Plebeians = artisans and small farmers
EARLY ROMAN LAW
1. Characterised by the absence of a distinction
between religion (fas) and law (ius)
2. Law was not accessible to the ordinary man
THE REPUBLICAN (B.C. 509
TO B.C. 31)
POLITICS DURING THE REBUBLIC
 Changed from Monarchy to Republic
 Important political players were:

a) The magistrates (collective term for 2 consuls;

Praetor and 2 aediles curules
b) The Senate (senatus)
c) The Popular Assembly

NB: These players (except consuls) emerged towards

the end of the monarchy
 THE MAGISTRATES
a) Consuls
 Right to veto (reject) any act performed by the other
consul
 Responsible for convening the Senate, the PA,
publishing edicts regarding activities of the consuls
themselves, controlling state treasury, etc.
 Initially the Consuls exercises all executive function.
b) One praetor – administrators of justice (367 BC)
c) Two aediles curules – maintaining order in the
market and on public roads.
 Please note

1. The magistrates were all elected by PA

2. Three principles applied to them: annularity,
collegiality and liability
 THE SENATE/COUNCIL OF
ELDERS
- 300 members
- Consultative body and main function was to advise
the magistrates
- Control over public funds
- Ratify legislation and elections of PA for these to
become operative
- Bills of laws discussed in Senate before it passes to
the Assembly
- Conducted foreign affairs
- Most powerful body and real leadership of the state
 THE POPULAR ASSEMBLY
 Represented all the people of Rome
 Principal functions were: the enactment of legislation
and the election of the magistrates
 Every male citizen had the right to vote in the election
and legislation
 Used a block vote system and composition of block vary
according to subject matter
 Class struggle , 1st half of the Rep period

 Assembly of the Plebeians (494BC)

 LAW DURING THE
REBUBLICAN PERIOD
 Legal development were influenced by the
following factors:
a) Law of the Twelve Tables

b) Activities of the praetors

c) Work of the jurists

LAW OF THE TWELVE TABLES (LEX
DUODECIM TABULARUM)
 Born from the struggle for legal and social
protection and civil rights between the privileged
patricians and plebeians
 It was drawn by a commission of ten men
(Decemviri)
 Binding force on both parties and which the
magistrates would have to enforce impartially.
 IMPORTANT LESSONS
1. Marked separation of law from
religion
2. Created legal certainty. Everybody
had access to rules
3. Realisation that law should be treated
systematically (through codification)
4. Reduced patricians exclusive control
over the laws
 PRAETORS
 Praetorship office established in 367 BC.
 Elected by the PA

 Responsible for administration of justice

 On assumption of office, the praetor published

his edict
 Its sets out the legal principles he intended to
follow when making judicial decisions during
his year in office.
 The procedures was as follows:
1. The plaintiff approached the defendant in public and
called for him to come to court. If he refused, he could
be taken there by force.
2. Trial phase. Two parts existed;
a) Preliminary hearing held before a magistrate who
decided whether there was an issue to be contested
and, if so, what it was. (iurisdictio powers)
b) Trial before a judex ( consented by the parties)
 The proceedings before the judex were more informal:
advocates spoke and gave evidence, and witnesses often
appeared.
 A second praetor called praetor peregrinus was est. in
242BC
 Administered justice involving foreigners. Applied ius
gentium
 He created a new method of procedure, the ‘formula’

1. He will hear the parties, oral pleadings

2. Prepare in writing, a formula he would present to the
judge
a) The name of the judge who would try the case,
b) Recite the issues to be determined by the judge,
c) Any technical defences or special pleas,
d) Told the judge what verdict was to be given if the facts
were true
3. The parties would proceed to the judge who would try
the case and render judgement
EXAMPLE 1. THE FORMULA FOR AN ACTION
WHERE THE CAUSE WAS A LOAN OF MONEY

XX must be the judge. If it appears that

the defendant ought to pay to the
plaintiff 1000 sesterces, he (the judge)
must condemn him; if this does not
appear, then he must absolve him.
 EXAMPLE 2. (CAUSE OF ACTION IS NOT
CREATED BY PRESCRIBED ACTS)

Because the plaintiff bought the slave in

question from the defendant which matter is
the subject of this action, the judge must
condemn the defendant to convey to or do for
the plaintiff whatever is in accordance with
good faith; if it does not appear he must
absolve him.
 The formula process was cheaper,
quicker and informal
 It enables the praetor to introduce new
remedies and thus create new law and
even refuse devices which he had
promised in the edict.
 This is the procedure that was finally
adopted in the whole republic and
thereafter
 Law made by the praetor was known as ius
honorarium
 Based on ius civile and ius gentium
 IUS CIVILE AND IUS GENTIUM
1. Ius civile –
 Traditional customary law of the Roman citizens
 Rigid and narrow

2) ius gentium
 The body of laws that applied to all people, foreigners and
non-citizens as well as citizens, and was based upon the
common principles and reasoning that civilized societies and
humankind were understood to live by and share
 Informal principles rooted in equity and good faith

NB: in AD 212 by Emperor Caracalla abolished the distinction

between foreigners and citizens rendering the distinction of
these laws unnecessary
 Praetor urban – administered justice
between citizens. (city in Rome)
 Praetor peregrinus – administered justice
among Roman citizens
 JURISTS
 Early jurists were self- appointed persons
interested in the study and interpretation of
law
 They were wealthy and aristocrats

 They discussed legal problems both actual and

hypothetical and writing about them
 They advised praetors, iudex, parties, lay
persons, etc.
 They did most important work during the
imperial period