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Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables (c. 449 BC), to the ''
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred ...
'' (AD 529) ordered by Eastern Roman emperor Justinian I. Roman law forms the basic framework for civil law, the most widely used legal system today, and the terms are sometimes used synonymously. The historical importance of Roman law is reflected by the continued use of Latin legal terminology in many legal systems influenced by it, including common law. 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 denoted the legal system applied in most of Western Europe until 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
Anglo-America Anglo-America most often refers to a region in the Americas in which English is the main language and British culture and the British Empire have had significant historical, ethnic, linguistic, and cultural impact."Anglo-America", vol. 1, Microp ...
n common law were influenced also by Roman law, notably in their Latinate legal glossary (for example, '' stare decisis'', ''
culpa in contrahendo ''Culpa in contrahendo'' is a Latin expression meaning "fault in conclusion of a contract". It is an important concept in contract law for many civil law countries, which recognize a clear duty to negotiate with care, and not to lead a negotiating ...
'', '' pacta sunt servanda''). 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 Byzantine law was essentially a continuation of Roman law with increased Orthodox Christian and Hellenistic influence. Most sources define ''Byzantine law'' as the Roman legal traditions starting after the reign of Justinian I in the 6th century ...
" of the medieval Byzantine legal system.


Development

Before the Twelve Tables (754–449 BC), private law comprised the Roman civil law (''ius civile Quiritium'') that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of
mancipatio In Roman law, ''mancipatio'' (f. Latin ''manus'' "hand" and ''capere'' "to take hold of") was a solemn verbal contract by which the ownership of certain types of goods, called ''res mancipi'', was transferred. ''Mancipatio'' was also the legal proc ...
(a form of sale). The jurist
Sextus Pomponius Sextus Pomponius was a jurist who lived during the reigns of Hadrian, Antoninus Pius and Marcus Aurelius. Other writers have expressed a view that the name Pomponius Sextus was shared by another jurist, although Puchta (Cursus der Institution, vol. ...
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 is believed that Roman Law is rooted in the
Etruscan religion Etruscan religion comprises a set of stories, beliefs, and religious practices of the Etruscan civilization, heavily influenced by the mythology of ancient Greece, and sharing similarities with concurrent Roman mythology and religion. As the Et ...
, emphasizing ritual.


Twelve Tables

The first legal text is the Law of the Twelve Tables, dating from the mid-fifth century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written in order to prevent magistrates from applying the law arbitrarily."A Short History of Roman Law", Olga Tellegen-Couperus pp. 19–20. After eight years of political struggle, the plebeian social class convinced the
patricians The patricians (from la, patricius, Greek: πατρίκιος) were originally a group of ruling class families in ancient Rome. The distinction was highly significant in the Roman Kingdom, and the early Republic, but its relevance waned after ...
to send a delegation to Athens to copy the Laws of Solon; they also dispatched delegations to other Greek cities for a like reason. In 451 BC, according to the traditional story (as Livy tells it), ten Roman citizens were chosen to record the laws, known as the ''
decemviri The decemviri or decemvirs (Latin for "ten men") were some of the several 10-man commissions established by the Roman Republic. The most important were those of the two Decemvirates, formally the " decemvirate with consular power for writing ...
legibus scribundis''. While they were performing this task, they were given supreme political power ('' imperium''), whereas the power of the magistrates was restricted. In 450 BC, the ''decemviri'' produced the laws on ten tablets (''tabulae''), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly. Modern scholars tend to challenge the accuracy of Latin historians. They generally do not believe that a second decemvirate ever took place. The decemvirate of 451 BC is believed to have included the most controversial points of customary law, and to have assumed the leading functions in Rome. Furthermore, questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Latin 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 Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Gauls 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 contained specific provisions designed to change the then-existing
customary law A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law". Customary law (also, consuetudina ...
. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and
civil procedure Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
.


Early law and jurisprudence

Among the most consequential laws passed during the early Republic were the ''
Lex Canuleia The (‘ Canuleian law’), or , was a law of the Roman Republic, passed in the year 445 BC, restoring the right of (marriage) between patricians and plebeians. Canuleius' first rogation Five years earlier, as part of the process of establishin ...
'' (445 BC), which allowed marriage —''conubium''— between
patricians The patricians (from la, patricius, Greek: πατρίκιος) were originally a group of ruling class families in ancient Rome. The distinction was highly significant in the Roman Kingdom, and the early Republic, but its relevance waned after ...
and plebeians; the '' Leges Liciinae Sextiae'' (367 BC), which restricted the amount of public land —''ager publicus''— that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian; the ''
Lex Ogulnia The ''lex Ogulnia'' was a Roman law passed in 300 BC. It was a milestone in the long struggle between the patricians and plebeians. The law was carried by the brothers Quintus and Gnaeus Ogulnius, tribunes of the plebs in 300 BC. For the fir ...
'' (300 BC), which permitted plebeians to hold certain priestly offices; and the ''
Lex Hortensia The ''lex Hortensia'', also sometimes referred to as the Hortensian law, was a law passed in Ancient Rome in 287 BC which made all resolutions passed by the Plebeian Council, known as ''plebiscita'', binding on all citizens. It was passed by the ...
'' (287 BC), which stated that the determinations of plebeian assemblies —''plebiscita''— would henceforth be binding on the entire ''populus Romanus'', both patricians and plebeians. Another important statute from the Republican era is the ''
Lex Aquilia The ''lex Aquilia'' was a Roman law which provided compensation to the owners of property injured by someone's fault, set in the 3rd century BC, in the Roman Republic. This law protected Roman citizens from some forms of theft, vandalism, and dest ...
'' 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'' or ''jurisprudentes'', sing. ''prudens'') 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 before 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 The Principate is the name sometimes given to the first period of the Roman Empire from the beginning of the reign of Augustus in 27 BC to the end of the Crisis of the Third Century in AD 284, after which it evolved into the so-called Dominate. ...
in 27 BC.


Pre-classical period

In the period between about 201 to 27 BC, we can see the development of more flexible laws 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 __NOTOC__ ''Ius'' or ''Jus'' (Latin, plural ''iura'') in ancient Rome was a right to which a citizen (''civis'') was entitled by virtue of his citizenship (''civitas''). The ''iura'' were specified by laws, so ''ius'' sometimes meant law. As one ...
'', which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law the old formalism is being abandoned and new more flexible principles of ''
ius gentium The '' ius gentium'' or ''jus gentium'' (Latin for "law of nations") is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ''ius gentium'' is not a body of statute la ...
'' 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''). 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 (142–212 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 were fused in the ''
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred ...
''.


Classical Roman law

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
edict An edict is a decree or announcement of a law, often associated with monarchism, but it can be under any official authority. Synonyms include "dictum" and "pronouncement". ''Edict'' derives from the Latin edictum. Notable edicts * Telepinu Proc ...
s, 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 Lucius Octavius Cornelius Publius Salvius Iulianus Aemilianus (c. 110 – c. 170), generally referred to as Salvius Julianus, or Julian the Jurist, or simply Julianus, was a well known and respected jurist, public official, and politician who serve ...
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 established 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 Gaius, sometimes spelled ''Gajus'', Kaius, Cajus, Caius, was a common Latin praenomen; see Gaius (praenomen). People * Gaius (jurist) (), Roman jurist *Gaius Acilius *Gaius Antonius * Gaius Antonius Hybrida *Gaius Asinius Gallus * Gaius Asiniu ...
(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 Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...
's ''Commentaries on the Laws of England'' and enactments like the French Code civil or the
German German(s) may refer to: * Germany (of or related to) **Germania (historical use) * Germans, citizens of Germany, people of German ancestry, or native speakers of the German language ** For citizens of Germany, see also German nationality law **Ge ...
BGB. The Roman Republic had three different branches: * Assemblies * Senate * Consuls The assemblies passed laws and made declarations of war; the Senate controlled the treasury; and the consuls had the highest juridical power.


Post-classical law

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 The Principate is the name sometimes given to the first period of the Roman Empire from the beginning of the reign of Augustus in 27 BC to the end of the Crisis of the Third Century in AD 284, after which it evolved into the so-called Dominate. ...
, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the dominate. The existence of 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 Vulgar is a Latin word meaning "common" or "pertaining to ordinary people." Language * Vulgar or common language, the vernacular speech of a region or a people * Language use characterised by vulgarity, see Vulgarism and Other uses *A vul ...
.


Substance


Concept of laws

* '' ius civile,
ius gentium The '' ius gentium'' or ''jus gentium'' (Latin for "law of nations") is a concept of international law within the ancient Roman legal system and Western law traditions based on or influenced by it. The ''ius gentium'' is not a body of statute la ...
, and
ius naturale ''Ius naturale'' is Latin for natural right, the laws common to all beings. Roman jurists wondered why the ''ius gentium'' (the laws which applied to foreigners and citizens alike) was in general accepted by all people living in the Empire. Their c ...
'' – the ''ius civile'' ("citizen law", originally ''ius civile Quiritium'') was the body of common laws that applied to Roman citizens and the ''Praetores Urbani'', 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'' were the individuals who had jurisdiction over cases involving citizens and foreigners. ''Jus naturale'' was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law (the express enacted ...
" instilled in all beings a common sense. * ''
ius scriptum ''Lex scripta'' pl. ''leges scriptae'' is a Latin expression that means "written or statutory law". It is in contrast to '' lex non scripta'', customary or common law. The term originates from the Roman legal tradition. Emperor Justinian divides ...
and
ius non-scriptum __NOTOC__ ''Ius'' or ''Jus'' (Latin, plural ''iura'') in ancient Rome was a right to which a citizen (''civis'') was entitled by virtue of his citizenship (''civitas''). The ''iura'' were specified by laws, so ''ius'' sometimes meant law. As one ...
'' – meaning 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 Council). Roman lawyers would also include in the ''ius scriptum'' the edicts of magistrates (''magistratuum edicta''), the advice of the Senate (''Senatus consulta''), the responses and thoughts of jurists (''
responsa ''Responsa'' (plural of Latin , 'answer') comprise a body of written decisions and rulings given by legal scholars in response to questions addressed to them. In the modern era, the term is used to describe decisions and rulings made by scholars i ...
prudentium''), and the proclamations and beliefs of the emperor (''principum placita''). ''Ius non-scriptum'' was the body of common laws that arose from customary practice and had become binding over time. * ''
ius commune ''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" i ...
and
ius singulare ''Ius singulare'' is Latin for "singular law". It was 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). An example of this is the law about w ...
'' – ''Ius 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 rules of the legal system), unlike general, ordinary, law (''ius 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. * ''
ius publicum ''Ius publicum'' is Latin for public law. Public law regulated the relationships of the government to its citizens, including taxation, while '' ius privatum'' ( private law), based upon property and contract, concerned relations between individua ...
and
ius privatum ''Ius privatum'' is Latin for private law. Contrasted with '' ius publicum'' (the laws relating to the state), ''ius privatum'' regulated the relations between individuals. In Roman law this included personal, property and civil law. Judicial proce ...
'' – ''ius 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. ''Ius publicum'' was also used to describe obligatory legal regulations (today called ''ius cogens''—this term is applied in modern international law to indicate peremptory 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 ''ius dispositivum'', and they are not used when party shares something and are in contrary.


Public 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 Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typic ...
, the separation of powers, vetoes, filibusters, quorum requirements, term limits,
impeachment Impeachment is the process by which a legislative body or other legally constituted tribunal initiates charges against a public official for misconduct. It may be understood as a unique process involving both political and legal elements. In ...
s, the powers of the purse, and regularly scheduled
elections An election is a formal group decision-making process by which a population chooses an individual or multiple individuals to hold public office. Elections have been the usual mechanism by which modern representative democracy has operated ...
. 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 Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the esta ...
, 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 The Battle of Actium was a naval battle fought between a maritime fleet of Octavian led by Marcus Agrippa and the combined fleets of both Mark Antony and Cleopatra VII Philopator. The battle took place on 2 September 31 BC in the Ionian Sea, nea ...
and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman emperor,
Augustus Caesar Augustus (born Gaius Octavius; 23 September 63 BC – 19 August AD 14), also known as Octavian, was the first Roman emperor; he reigned from 27 BC until his death in AD 14. He is known for being the founder of the Roman Pri ...
, attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to the
Principate The Principate is the name sometimes given to the first period of the Roman Empire from the beginning of the reign of Augustus in 27 BC to the end of the Crisis of the Third Century in AD 284, after which it evolved into the so-called Dominate. ...
, e.g. reusing prior grants of greater imperium to substantiate Augustus' greater imperium over the Imperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of the
Roman Empire The Roman Empire ( la, Imperium Romanum ; grc-gre, Βασιλεία τῶν Ῥωμαίων, Basileía tôn Rhōmaíōn) was the post-Roman Republic, Republican period of ancient Rome. As a polity, it included large territorial holdings aro ...
.


Private law

''Stipulatio'' was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below. ''Rei vindicatio'' is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an ''actio furti'' (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the ''condictio furtiva'' (a personal action). With the aid of the ''actio legis Aquiliae'' (a personal action), the plaintiff could claim damages from the defendant. ''Rei vindicatio'' was derived from the ius civile, therefore was only available to Roman citizens.


Status

To describe a person's position in the legal system, Romans mostly used the expression ''togeus''. 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''—''alieni iuris''—which lives by someone else's law. Two status types were senator and emperor.


Litigation

The history of Roman Law can be divided into three systems of procedure: that of ''legis actiones'', the ''formulary system'', and ''cognitio extra ordinem''. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began. 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. No one had a legal obligation to judge a case. 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.


Legacy


In the East

When the centre of the Empire was moved to the
Greek East Greek East and Latin West are terms used to distinguish between the two parts of the Greco-Roman world and of Medieval Christendom, specifically the eastern regions where Greek was the ''lingua franca'' (Greece, Anatolia, the southern Balkans, the ...
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'', the power held by the male head of a family over his descendants, by acknowledging that persons ''in potestate'', the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law. The ''
Codex Theodosianus The ''Codex Theodosianus'' (Eng. Theodosian Code) was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Emperor Theodosius II and his co-emperor Valentinian III on 26 March 429 ...
'' (438 AD) was a codification of Constantian laws. 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. The codes of Justinian, particularly the ''
Corpus Juris Civilis The ''Corpus Juris'' (or ''Iuris'') ''Civilis'' ("Body of Civil Law") is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred ...
'' (529–534) continued to be the basis of legal practice in the Empire throughout its so-called ''
Byzantine The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinopl ...
'' history.
Leo III the Isaurian Leo III the Isaurian ( gr, Λέων ὁ Ἴσαυρος, Leōn ho Isauros; la, Leo Isaurus; 685 – 18 June 741), also known as the Syrian, was Byzantine Emperor from 717 until his death in 741 and founder of the Isaurian dynasty. He put an e ...
issued a new code, the ''Ecloga'', in the early 8th century. In the 9th century, the emperors
Basil I Basil I, called the Macedonian ( el, Βασίλειος ὁ Μακεδών, ''Basíleios ō Makedṓn'', 811 – 29 August 886), was a Byzantine Emperor who reigned from 867 to 886. Born a lowly peasant in the theme of Macedonia, he rose in the ...
and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, 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, and, along with the
Syro-Roman law book The Syro-Roman law book (or Syro-Roman code) is a compilation of secular legal texts from the eastern Roman Empire originally composed in Greek in the late 5th century, but surviving only in Syriac translation. As a work of Roman law, the origina ...
, also formed the basis for much of the ''
Fetha Negest The Fetha Negest ( gez, ፍትሐ ነገሥት, fətḥa nägäśt, Justice of the Kings) is a theocratic legal code compiled around 1240 by the Coptic Egyptian Christian writer Abu'l-Fada'il ibn al-Assal in Arabic. It was later translated into ...
'', which remained in force in Ethiopia until 1931.


In the West

In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes issued by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, 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 ''
Codex Justinianus The Code of Justinian ( la, Codex Justinianus, or ) is one part of the ''Corpus Juris Civilis'', the codification of Roman law ordered early in the 6th century AD by Justinian I, who was Eastern Roman emperor in Constantinople. Two other units, ...
'' and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the '' Digest'' portion was largely ignored for several centuries until around 1070, when 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 center of these studies was Bologna. The law school there gradually developed into Europe's first university. 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 were 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", a phrase initially coined by Ulpian, a Roman jurist). There are several reasons that Roman law was favored in the Middle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and 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 of many European countries. A legal system, in which Roman law was mixed with elements of
canon law Canon law (from grc, κανών, , a 'straight measuring rod, ruler') is a set of ordinances and regulations made by ecclesiastical authority (church leadership) for the government of a Christian organization or church and its members. It is th ...
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 ''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" i ...
''. This ''Ius Commune'' and the legal systems based on it are usually referred to as civil law in English-speaking countries. Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the
English legal system English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures. Principal elements of English law Although the common law has, historically, bee ...
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. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the
Inns of Court The Inns of Court in London are the professional associations for barristers in England and Wales. There are four Inns of Court – Gray's Inn, Lincoln's Inn, Inner Temple and Middle Temple. All barristers must belong to one of them. They ha ...
in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or
Cambridge Cambridge ( ) is a university city and the county town in Cambridgeshire, England. It is located on the River Cam approximately north of London. As of the 2021 United Kingdom census, the population of Cambridge was 145,700. Cambridge becam ...
. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, 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 (customary) law, and it was called ''usus modernus Pandectarum''. In some parts of Germany, Roman law continued to be applied until the German
civil code A civil code is a codification of private law relating to property, family, and obligations. A jurisdiction that has a civil code generally also has a code of civil procedure. In some jurisdictions with a civil code, a number of the core are ...
(
Bürgerliches Gesetzbuch The ''Bürgerliches Gesetzbuch'' (, ), abbreviated BGB, is the civil code of Germany. In development since 1881, it became effective on 1 January 1900, and was considered a massive and groundbreaking project. The BGB served as a template in se ...
, BGB) went into effect in 1900. Colonial expansion spread the civil law system.


Today

Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old ''
jus commune ''Jus commune'' or ''ius commune'' is Latin for "common law" in certain jurisdictions. It is often used by civil law jurists to refer to those aspects of the civil law system's invariant legal principles, sometimes called "the law of the land" i ...
''. 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 the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the 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. In this context, the annual International Roman Law Moot Court was developed in order to better educate the students and to network with one another internationally.Areti Kotseli "Greek Law Students Finish Second in the 2012 International Roman Law Moot Court Competition" In: Greek Reporter 13.04.2012. As steps towards a unification of the private law in the member states of the European Union are being taken, the old ''jus commune'', which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model.


See also

*
Abalienatio ''Abalienatio'', in Roman law, is a legal transfer of property by sale or other alienation. According to Cicero Marcus Tullius Cicero ( ; ; 3 January 106 BC – 7 December 43 BC) was a Roman statesman, lawyer, scholar, philosopher ...
(legal transfer of property) * Auctoritas (power of the sovereign) *
Basileus ''Basileus'' ( el, ) is a Greek term and title that has signified various types of monarchs in history. In the English-speaking world it is perhaps most widely understood to mean "monarch", referring to either a "king" or an "emperor" and al ...
(akin to modern sovereign) *
Byzantine law Byzantine law was essentially a continuation of Roman law with increased Orthodox Christian and Hellenistic influence. Most sources define ''Byzantine law'' as the Roman legal traditions starting after the reign of Justinian I in the 6th century ...
* Capitis deminutio *
Certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of ...
*
Cessio bonorum ''Cessio bonorum'' (Latin for a "surrender of goods"), in Roman law, is a voluntary surrender of goods by a debtor to his creditors. It did not amount to a discharge unless the property ceded was sufficient for the purpose, but it secured the deb ...
(surrender of goods to a creditor) *
Compascuus ''Compascuus'' is Latin for commonly grazed, and hence often used in the forms ''ager compascuus'' (common pasture land) and ''compascuum'' (the common pasture). In the early Roman Republic, there were three kinds of land: private, public and common ...
(common pasture) *
Constitution (Roman law) In Roman law, a constitution is a generic name for a legislative enactment by a Roman emperor. It includes ''edicts'', ''decrees'' (judicial decisions) and ''rescripts'' (written answers to officials or petitioners). ''Mandata'' (instructions) ...
* Homo sacer * Interregnum * Justitium (akin to modern state of exception) *
Lex Caecilia Didia The ''lex Caecilia Didia'' was a law put into effect by the consuls Q. Caecilius Metellus Nepos and Titus Didius in the year 98 BC. This law had two provisions. The first was a minimum period between proposing a Roman law and voting on it, and the ...
* Lex Duodecim Tabularum * Lex Junia Licinia *
Lex Manciana The ''Lex Manciana'' is a Roman law dealing with tenancy agreements of imperial estates in Roman North Africa. Location The Imperial estates in question are all from the Bagradas Valley region of Africa Proconsularis (modern day Tunisia, around ...
* List of Roman laws *
Res extra commercium ''Res extra commercium'' ( lat. "a thing outside commerce") is a doctrine originating in Roman law, holding that certain things may not be the object of private rights, and are therefore insusceptible to being trade Trade involves the transf ...
* Roman-Dutch law *
Stipulatio ''Stipulatio'' was the basic form of contract in Roman law. It was made in the format of question and answer. Capacity In order for a contract to be valid, parties must have capacity: both '':wikt:intellectus, intellectus'' ("understanding") and ...
*
Ancient Greek law Ancient Greek law consists of the laws and legal institutions of Ancient Greece. The existence of certain general principles of law is implied by the custom of settling a difference between two Greek states, or between members of a single state, ...


References


Sources

* Berger, Adolf
"Encyclopedic Dictionary of Roman Law"
''Transactions of the American Philosophical Society'', Vol. 43, Part 2., pp. 476. Philadelphia :
American Philosophical Society The American Philosophical Society (APS), founded in 1743 in Philadelphia, is a scholarly organization that promotes knowledge in the sciences and humanities through research, professional meetings, publications, library resources, and communit ...
, 1953. (reprinted 1980, 1991, 2002).


Further reading

* Bablitz, Leanne E. 2007. ''Actors and Audience in the Roman Courtroom.'' London: Routledge. * Bauman, Richard A. 1989. ''Lawyers and Politics in the Early Roman Empire.'' Munich: Beck. * Borkowski, Andrew, and Paul Du Plessis. 2005. ''A Textbook on Roman Law.'' Oxford: Oxford Univ. Press. * Buckland, William Warwick. 1963. ''A Textbook of Roman Law from Augustus to Justinian.'' Revised by P. G. Stein. 3d edition. Cambridge, UK: Cambridge Univ. Press. * Daube, David. 1969. ''Roman Law: Linguistic, Social and Philosophical Aspects.'' Edinburgh: Edinburgh Univ. Press. * De Ligt, Luuk. 2007. "Roman Law and the Roman Economy: Three Case Studies." ''Latomus'' 66.1: 10–25. * du Plessis, Paul. 2006. "Janus in the Roman Law of Urban Lease." ''Historia'' 55.1: 48–63. * Gardner, Jane F. 1986. ''Women in Roman Law and Society.'' London: Croom Helm. * Gardner, Jane F. 1998. ''Family and Familia in Roman Law and Life''. Clarendon Press. * Harries, Jill. 1999. ''Law and Empire in Late Antiquity.'' Cambridge; New York: Cambridge University Press. * Nicholas, Barry. 1962. ''An Introduction to Roman Law''. Oxford: Clarendon Press. * Nicholas, Barry, and Peter Birks, eds. 1989. ''New Perspectives in the Roman Law of Property.'' Oxford: Oxford Univ. Press. * Powell, Jonathan, and Jeremy Paterson, eds. 2004. ''Cicero the Advocate.'' Oxford: Oxford Univ. Press. * Rives, James B. 2003. "Magic in Roman Law: The Reconstruction of a Crime." Classical Antiquity 22.2: 313–39. * Schulz, Fritz. 1946. ''History of Roman Legal Science.'' Oxford: Clarendon Press. * Stein, Peter. 1999. ''Roman Law in European History.'' New York: Cambridge Univ. Press. * Tellegen-Couperus, Olga E. 1993. ''A Short History of Roman Law.'' London: Routledge. *
Wenger, Leopold Leopold Wenger (4 September 1874 – 21 September 1953) was a prominent Austrian historian of ancient law. He fostered interdisciplinary study of the ancient world (including law, literature, papyri, and inscriptions). Biography Wenger was born in ...
. 1953. ''Die Quellen des römischen Rechts.'' Vienna: Österreichische Akademie der Wissenschaften.


External links


A collection of resources maintained by professor Ernest Metzger

''The Roman Law Library'' by Professor Yves Lassard and Alexandr Koptev



''Roman Legal Tradition'': open access journal devoted to Roman law
* {{Authority control Italian inventions