ROMAN LAWROMAN LAW

Development and InfluenceDevelopment and Influence

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DefinitionDefinition CodificationsCodifications Germanic lawsGermanic laws Canon lawCanon law Ius comune: common law of Ius comune: common law of

EuropeEurope National codesNational codes

DefinitionDefinition

1. The legal system of ancient 1. The legal system of ancient RomeRome

2. System of law developed in the 2. System of law developed in the Republic of Rome, the Roman Republic of Rome, the Roman Empire and the Byzantine EmpireEmpire and the Byzantine Empire

The Law of the Twelve The Law of the Twelve TablesTables

((Lex Duodecim TabularumLex Duodecim Tabularum)) In the earliest period –laws kept In the earliest period –laws kept

secret by pontificessecret by pontifices In 451 BC a board of ten men In 451 BC a board of ten men

(Decemvirate) was appointed to (Decemvirate) was appointed to draw up a codedraw up a code

The Law of the Twelve The Law of the Twelve TablesTables ((Lex Duodecim TabularumLex Duodecim Tabularum)) ““...every citizen should quietly ...every citizen should quietly

consider each point, then talk it over consider each point, then talk it over with his friends, and, finally, bring with his friends, and, finally, bring forward for public discussion any forward for public discussion any additions or subtractions which additions or subtractions which seemed desirable” (Livy)seemed desirable” (Livy)

Formally promulgated in 449 BCFormally promulgated in 449 BC Drawn up on 12 tablets posted in the Drawn up on 12 tablets posted in the

Forum RomanumForum Romanum

The Law of the Twelve Tables The Law of the Twelve Tables ( (Lex Duodecim TabularumLex Duodecim Tabularum))

not a law code in the modern sensenot a law code in the modern sense not a complete and coherent system not a complete and coherent system

of all applicable rules of all applicable rules contained specific provisions designed contained specific provisions designed

to change the then-existingto change the then-existing customary customary lawlaw

provisions pertain to all areas of law, provisions pertain to all areas of law, but but the largest partthe largest part-- dedicated to dedicated to private law and civil procedureprivate law and civil procedure

Excerpts from the Twelve Excerpts from the Twelve TablesTables

Tabula I: Civil ProcedureTabula I: Civil Procedure

If someone is called to go to If someone is called to go to court, he is to go. If he does court, he is to go. If he does not go, a witness should be not go, a witness should be called. Only then should he be called. Only then should he be capturedcaptured

Excerpts from the Twelve Excerpts from the Twelve TablesTables

Tabula I: Civil ProcedureTabula I: Civil Procedure

When parties have made an When parties have made an agreement, announce it. If they agreement, announce it. If they don’t agree, they shall state their don’t agree, they shall state their case in the Forum before noon. case in the Forum before noon. They shall plead together in They shall plead together in person. After noon, let the judge person. After noon, let the judge pronounce. If both are present, pronounce. If both are present, the case shall end at sunset.the case shall end at sunset.

Roman lawRoman law

Rome's most important contribution to Rome's most important contribution to European legal culture European legal culture -- not the not the enactment of well-drafted statutes, but enactment of well-drafted statutes, but the emergence of a class of professionalthe emergence of a class of professional juristsjurists ( (prudentesprudentes, or , or jurisprudentesjurisprudentes) and ) and of a legal science. This was achieved in a of a legal science. This was achieved in a gradual process of applying the methods gradual process of applying the methods ofof Greek philosophy Greek philosophy to the subject of law, to the subject of law, a subject which the Greeks themselves a subject which the Greeks themselves never treated as a science.never treated as a science.

Roman law: Roman law: 201 to 27 201 to 27 BC, BC, development of more flexible laws to match development of more flexible laws to match

the needs of the time. the needs of the time. In addition to the old and formalIn addition to the old and formal ius civileius civile a a

new juridical class creatednew juridical class created: : ius honorarium:ius honorarium: "The law introduced by the magistrates who "The law introduced by the magistrates who had the right to promulgate edicts in order to had the right to promulgate edicts in order to support, supplement or correct the existing support, supplement or correct the existing law." law."

old formalism abandoned and new more old formalism abandoned and new more flexible principles offlexible principles of ius gentiumius gentium are usedare used

PraetorsPraetors

AAdaptation of law to new needsdaptation of law to new needs-- given given over toover to magistrates magistrates, esp, esp.. to to praetorspraetors PraetorPraetor -- not a legislator not a legislator; ; did not did not technically create new law when he technically create new law when he issued his edicts (issued his edicts (magistratuum magistratuum edictaedicta). ).

results of his rulings enjoyed legal results of his rulings enjoyed legal protection (protection (actionem dareactionem dare) and were ) and were often the source of new legal rules. often the source of new legal rules.

PraetorPraetor

A Praetor's successor was not A Praetor's successor was not bound by the edicts of his bound by the edicts of his predecessor; however, he did take predecessor; however, he did take rules from edicts of his predecessor rules from edicts of his predecessor that had proved to be useful. that had proved to be useful.

In this way a constant content was In this way a constant content was created that proceeded from edict created that proceeded from edict to edict (to edict (edictum traslatitiumedictum traslatitium).).

Classical Roman lawClassical Roman law

distinction betweendistinction between the legal right to use a thing the legal right to use a thing (ownership) from the factual ability to use and (ownership) from the factual ability to use and manipulate the thing (possession)manipulate the thing (possession)

distinction between contract and tort distinction between contract and tort standard types of contract (sale, contract for work, standard types of contract (sale, contract for work,

hire, contract for services) hire, contract for services) GaiusGaius ( (cc.cc. 160) invented a system of private law 160) invented a system of private law

based on the division into based on the division into personaepersonae (persons), (persons), resres (things) and (things) and actionesactiones (legal actions). This system can (legal actions). This system can be recognized in be recognized in the French Civil Code or the German the French Civil Code or the German Civil CodeCivil Code

Corpus Iuris Civilis Corpus Iuris Civilis (Codex Justinianus)(Codex Justinianus)

Most Most comprehensive comprehensive code of Roman code of Roman law, compiled law, compiled (529-35) under (529-35) under Justinian I, by Justinian I, by commission of commission of jurists headed by jurists headed by TribonianTribonian

Corpus Iuris CivilisCorpus Iuris Civilis

1. Codex or Code (collection of 1. Codex or Code (collection of imperial constitutions)imperial constitutions)

2. Digest of Pandects (selections 2. Digest of Pandects (selections from classical jurists)from classical jurists)

3. Institutes (textbook of 3. Institutes (textbook of elementary rules)elementary rules)

4. Novels or Novellae (later 4. Novels or Novellae (later constitutions)constitutions)

GERMANIC LAWSGERMANIC LAWS

Codes adopted (5th-9th c.) after the Codes adopted (5th-9th c.) after the Germanic invaders of the Roman Germanic invaders of the Roman Empire had created their governmentsEmpire had created their governments

Leges barbarum Leges barbarum incorporated much of incorporated much of the older Germanic customary lawthe older Germanic customary law

Largely concerned with penal law and Largely concerned with penal law and composition for personal injuriescomposition for personal injuries

Some of the codes - strong Roman Some of the codes - strong Roman influenceinfluence

CompositionComposition

In primitive and medieval law, prevention In primitive and medieval law, prevention of retribution for acts of violence by of retribution for acts of violence by payment of money to injured person or payment of money to injured person or his familyhis family

Marks transition from vendetta system to Marks transition from vendetta system to system of criminal law where socially system of criminal law where socially dangerous acts are concern of the state dangerous acts are concern of the state rather than of a family unitrather than of a family unit

Old English Old English wergildwergild: payment made by a : payment made by a murderer to the victim’s familymurderer to the victim’s family

CANON LAWCANON LAW

In the Roman Catholic Church, In the Roman Catholic Church, law of the church courts, based law of the church courts, based on legislation of councils, popes on legislation of councils, popes and bishopsand bishops

Based on Roman lawBased on Roman law

Re-Emergence of Re-Emergence of Roman Law in the Roman Law in the

WestWest C. 1050 jurists rediscovered Roman C. 1050 jurists rediscovered Roman

law, namely the compilations of law, namely the compilations of Justinian, especially his DigestJustinian, especially his Digest

Scholars known as glossators, and Scholars known as glossators, and later as commentators, interpreted the later as commentators, interpreted the compilations and generated an compilations and generated an influential body of literature that came influential body of literature that came to be known as the jus commune or to be known as the jus commune or common law of Europecommon law of Europe

THE UNIVERSITY OF THE UNIVERSITY OF BOLOGNABOLOGNA

The oldest The oldest university in the university in the world (1088)world (1088)

THE UNIVERSITY OF THE UNIVERSITY OF BOLOGNABOLOGNA

Students who studied Roman law Students who studied Roman law in Bologna found that many rules in Bologna found that many rules of Roman law were better suited of Roman law were better suited to regulate complex economic to regulate complex economic transactions than customary transactions than customary rules; Roman law was re-rules; Roman law was re-introduced into legal practiceintroduced into legal practice

Sixteenth centurySixteenth century

The rediscovered Roman law The rediscovered Roman law dominated legal practice in most dominated legal practice in most European countries. European countries.

A legal system, in which Roman A legal system, in which Roman law was mixed with elements of law was mixed with elements of canon law and of Germanic canon law and of Germanic customcustom

ENGLAND AND ROMAN ENGLAND AND ROMAN LAWLAW

The English legal system absorbed few elements of The English legal system absorbed few elements of Roman law:Roman law:

1. English legal system – more developed than its 1. English legal system – more developed than its continental counterparts when Roman law was continental counterparts when Roman law was rediscovered (Henry II: 1154-1189)rediscovered (Henry II: 1154-1189)

2. Roman law - associated with the Holy Roman 2. Roman law - associated with the Holy Roman Empire and the Roman Catholic Church - unacceptable Empire and the Roman Catholic Church - unacceptable in England (The Act of Supremacy 1534)in England (The Act of Supremacy 1534)

English common law developed in parallel to Roman-English common law developed in parallel to Roman-based civil lawbased civil law

THE FRENCH CIVIL THE FRENCH CIVIL CODECODE The practical application of The practical application of

Roman law came to an end when Roman law came to an end when national codifications were madenational codifications were made

In 1804, the French civil code In 1804, the French civil code came into forcecame into force

In the 19th century, many In the 19th century, many European states adopted the European states adopted the French model or drafted their own French model or drafted their own codescodes

SummarySummary

Law of the Twelve Tables (449 BC)Law of the Twelve Tables (449 BC) Corpus juris civilis (529-35) Corpus juris civilis (529-35) Germanic customary law (5th-9th c.) Germanic customary law (5th-9th c.) Canon lawCanon law University of Bologna (1088)University of Bologna (1088) GlossatorsGlossators Napoleonic Code (1804)Napoleonic Code (1804)