Roman Law

An Introduction

Rafael Domingo

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9780815362777
• eBook ISBN: 9781351111454
• Topic: History
• Subtopic: Ancient History
• Index: History

Roman Law: An Introduction offers a clear and accessible introduction to Roman law for students of any legal tradition. In the thousand years between the Law of the Twelve Tables and Justinian's massive Codification, the Romans developed the most sophisticated and comprehensive secular legal system of Antiquity, which remains at the heart of the civil law tradition of Europe, Latin America, and some countries of Asia and Africa. Roman lawyers created new legal concepts, ideas, rules, and mechanisms that most Western legal systems still apply. The study of Roman law thus facilitates understanding among people of different cultures by inspiring a kind of legal common sense and breadth of knowledge.

Based on over twenty-five years' experience teaching Roman law, this volume offers a comprehensive examination of the subject, as well as a historical introduction which contextualizes the Roman legal system for students who have no familiarity with Latin or knowledge of Roman history. More than a compilation of legal facts, the book captures the defining characteristics and principal achievements of Roman legal culture through a millennium of development.

Part I

Roman law in historical context

1 Basic legal concepts and values

This introductory chapter addresses broad topics and general ideas that overarch the entire Roman legal tradition. They constitute the most distinctive representations of Roman law. Some are original to the Romans, most come from the Greeks, and a few come from other ancient civilizations. The Roman spirit and talent modulated all of them, but at no point did they remain static in Roman legal sources. With different nuances, refinements, and implications, these fundamental topics also embody the key ideas of most Western legal systems.

These basic ideas comprise the grammar of any legal culture because they deal with the permanent questions that human beings have formulated in relation to the law. This chapter’s selection is discretionary and has a pedagogical purpose. It could have included many other crucial ideas: ownership, obligation, contract, and so on. These further subjects, however, I prefer to discuss in context to facilitate understanding of them. The first three sections, different in character, introduce the very idea of Roman law as such and its connection with Greek culture.

Significance of Roman law

Roman law was the legal system (ordo iuris) of ancient Rome from its foundation in 753 BCE, according to tradition, to the death of Emperor Justinian the Great (483–565 CE), almost one hundred years after the fall of the Western Roman Empire (476 CE). In the thousand years between the Law of the Twelve Tables (451–450 BCE) and Justinian’s massive Codification (around 530 CE), the Romans developed the most sophisticated and comprehensive secular legal system of antiquity. Roman law is still at the heart of the civil law tradition of the European continent and some of its former colonies in the Americas, Asia, and Africa, and it was instrumental in the development of international law, the church’s canon law, and the common law tradition. Roman lawyers created new legal concepts, ideas, rules, and mechanisms that most Western legal systems still apply.

The development of Roman law was gradual and always in line with the different stages of Roman constitutional history: the Monarchy (753–509 BCE), the Republic (509–27 BCE), the Principate (27 BCE–284 CE), and the Later Empire (284–565 CE). Roman law started as a set of rules and rituals of a central Italian city-state with a citizen body of around twenty thousand people, and it became over time the legal system of a great empire with an estimated population of sixty-five to eighty million at its greatest extent in the reign of Trajan (117 CE). Gradually, Roman law began losing its local character, becoming the common law of more than a fourth of the world’s population.

Roman law represents a unique achievement in legal history. One of the most original contributions of Roman civilization to humankind, it was a characteristic product of Roman genius and probably Rome’s greatest intellectual legacy. The success of Roman law derives, in part, from its universal character; the high quality and creativity of its legal science; the power of ancient Rome; and the centuries of adaptation and refinement of Roman law by the Catholic Church (the legal technique and structure of canon law are basically distilled from Roman law). The success of Roman law also lay in its ability to live in harmony with the rules and institutions of other legal systems and cultures.

Roman law reached an unprecedented balance between justice and fairness, natural and civil justice, private and public interest, moral authority (auctoritas) and coercive power (potestas), judicial flexibility and legal certainty, grammar and intention, tradition and innovation, simplicity and scholarship, and abstraction and casuistry. Roman law constitutes a perennial model for the appropriate development of legal systems for all times, as well as a foundational pillar of emerging global law. Roman law offers a good example of how a legal system can be developed and modernized based on equitable ideas and principles. For these reasons, among others, Roman law still commands the respect and admiration of independent legal thinkers and practitioners of different legal traditions as a unique tradition of legal thought.

Classical Roman law

The classical period of Roman law provides the best comprehensive framework of the development of Roman law, and it became the model for later generations of legal actors. This classical period stretched from about the last century of the Roman Republic to the end of the Principate (284 CE). It is also common to locate the beginning of the classical period in the promulgation of the lex Aebutia (around 130 BCE), which promoted the so-called formulary procedure, and to mark the close of this period around 230 CE, some decades before the end of the Principate, with the murders of the jurist Ulpian in 223 CE and the Emperor Alexander Severus in 235 CE. This period is called classical because of the imagination and creativity of the emerging class of Roman jurists and the harmony and elegance of their legal science. The rise of a selected group of jurists developing a refined technique of legal reasoning for the resolution of legal conflicts, and the formation and expansion of the so-called formulary procedure, are traditionally considered the two features that characterize this classical period of Roman law.

Primitive Roman law emphasized an excessive adherence to prescribed forms and rituals. Without the observance of these steady formalities, the manifestation of the will of a citizen was considered legally ineffective. It was the solemnity of the forms, the formalities, and not agreements or intentions, that produced legal consequences. A defect of will (fraud or mistake) did not affect the validity of a legal act or its legal effectiveness. Classical Roman lawyers, however, mitigated formalism and promoted an increasing flexibility. They developed a good balance between the required formalities demanded by the need for certainty, and the necessary elasticity required to protect individual or collective consent, rights, and wills.

During the classical period, Roman lawyers applied new abstract methods of thought imported from Greek culture. This allowed, for instance, the development of the idea of ownership as a right; the idea of consensual contract as a sort of legal obligation; the idea of good faith as a pillar of some reciprocal legal relations; and many other ideas and concepts at the heart of the Western legal tradition. Finally, classical Roman law also fostered the use of writing in the legal field. That happened specifically in the area of litigation with the introduction of formulary procedure, which provided a new remedial structure for the resolution of legal conflicts based on a written document (formula) approved by the praetor at the request of the parties. The link between the classical period and legal procedure is so strong that the classical period ended along with the fading of formulary procedure around 230 CE.

Greek impact on Roman law

The influence of Greek civilization on Roman law is clear but complex and problematic. Paradoxically, Romans began to appreciate Greek culture just as Greek civilization began to decline. Roman superiority in the military and political realms was not an obstacle to admiring the intellectual excellence and preeminence of Greek models in philosophy, rhetoric, historiography, and poetry, among other things. It is said that the Roman army conquered the Greek world, but the Greek spirit conquered the Roman soul. This mutual relationship inspired Horace’s famous epigram (Epistles 2.1.156–57): “Graecia capta ferum victorem cepit et artis / intulit agresti Latio” (Captive Greece took captive her fierce conqueror, and introduced her arts into the rude region of Latium).

In the specific field of Roman law, according to an ancient tradition, the commission charged to draw up the Roman code of the Twelve Tables (451–450 BCE) traveled from Rome to Athens to study and analyze in depth the laws of Solon, and they actually incorporated some of those precepts. In 155 BCE, a delegation of relevant members of the Athenian Peripatetic, Academic, and Stoic schools visited and spoke before the Roman Senate. Of these schools, the Stoic was the main source of influence on Roman legal education. Founded in Athens by Zeno of Citium in the early third century BCE, Stoic teaching was based on the idea that reason constitutes the essential nature of human beings. This idea is summed up in the famous Stoic maxim, “Live according to nature.” The Scipionic circle developed this Stoic view of the world. This circle was a kind of literary society patronized by Scipio Aemilianus (185–129 BCE), extremely active in the middle of the second century BCE, and composed of philosophers, poets, and politicians who promoted Greek culture and values. The Stoic spirit also animated almost all the Roman jurists and many of the Roman thinkers during both the Republic and the Empire (Cicero, Seneca, Marcus Aurelius).

Roman jurists made little use of Greek philosophy in general, but Greek thought stimulated them, especially during the Hellenistic period of Roman jurisprudence, from the close of the Second Punic War (201 BCE) to the beginning of the Principate by Octavian (27 BCE). One of the most important intellectual tools Roman jurists received from the Greeks was the dialectical method. According to this mode of argumentation, material should be organized in an orderly system by a process of division and subdivision into genera and species. The criteria of classification were made by establishing differences, on the one hand, and analogies or affinities, on the other. The conception of the law of nations (ius gentium), and the aedilitian edict, with important innovations in the law of sale, are among other things, good examples of the influence of Greek law upon Roman law. Another notable contribution of Greek ideas to Roman law was the supremacy of intention or will (voluntas) over words (verba). As the jurist Celsus put it, “knowing the laws does not mean simply grasping the words, but their force and scope” (D. 1.3.17: “scire leges non hoc est verba earum tenere, sed vim ac potestatem”). Finally, the Roman concept of equity (aequitas) deserves mention as a concrete specification of the Greek concept epieikeia.

Iustitia

The Roman jurists did not develop a theory of the foundations of justice, and they did not discuss its nature, as Greek philosophers did. Although in their high moral consciousness Roman jurists captured the concept of substantive justice, they rarely appealed to the ethical foundations of justice, probably because of the simplicity of their legal style and their intuitive resistance to abstraction. In their instructional writings, they just accommodated Greek philosophy to the Roman spirit and character.

Unlike the Roman jurists, Cicero, who classified himself as a thinker working outside of jurisprudence (Brutus 41.151; Pro Murena 13, 29–30; De oratore 41.141), explored the idea of justice in his dialogue De officiis [On duties, 44 BCE], in which he considered this virtue the most distinguished of all of them (De officiis 1.20). According to Cicero, justice and beneficence are two categories of the same virtue (De officiis 1.20) that involves the idea of respect for each human being and for humanity as a collectivity. Justice has two aspects: one negative and another positive. The negative aspect demands not doing any harm to anyone, unless provoked by a wrongful or unlawful act. The positive requires using common things as common and private things as private. Any taking of private property constitutes a violation of human fellowship, and therefore it is a genuine injustice (De officiis 1. 21). Justice also demands treating our opponents with respect and honesty. Even those adversaries who have wronged someone must be treated morally. Vengeance and punishment must be limited. These duties of justice are to be observed even with regard to slaves, who should be treated as if they were employees (De officiis 1.41).

In relation to warfare, Cicero held that war must be the last resort after all negotiations have failed. The proper concern of human beings, who are not beasts, is to resolve conflicts by negotiation and not by force. For this reason, discussions to avoid war are always more desirable than the force of war itself (De officiis 1.34). War should be formally announced and declared, and can be justified only when one party has been grievously wronged by another. Promises made to the enemy must be faithfully kept. During war, the foe has to be treated mercifully, and after the end of the conflict, the vanquished party should be given fair treatment, including the possibility of receiving citizenship, as the Romans’ forebears did with the Tusculani, the Aequi, the Volsci, or the Sabini (De officiis 1.35).

Relying predominantly on Stoic philosophy, and consequently on Ciceronian definitions, the jurist Ulpian defined justice as “the perpetual and constant will to give to each his or her own” (D. 1.1.10 pr = Inst. 1.1pr: “constans et perpetua voluntas ius suum cuique tribuendi”). This famous definition, promoted by Emperor Justinian in his important codification, has been largely accepted in Western legal culture into our own day.

Ius

The word ius is derived from Jupiter or Jove (in Latin: Iuppiter; genitive: Iovis). In ancient Roman religion and myth, Jupiter was the god of sky and thunder, the king of the gods, and the chief deity of the Roman state religion, laws, and social order. However, Hugo Grotius (De iure belli ac pacis. Prolegomena 13 note 3) preferred the derivation of ius from the word iussum (command), just as the word os (bone) was a shortening of ossum. Though interesting, Grotius’s etymology is incorrect.

Ius is an ambiguous word that could be used in singular (ius) or plural (iura). There is no Greek equivalent for the Latin word ius, nor does it have an exact equivalent in English, although many English words come from ius: justice, jurisprudence, jurist, adjudication, jurisdiction, among others. Most of the time, ius should be translated as “law” (or “the laws”), in the objective sense of a legal order or whole body of norms, rules, and standards, but sometimes it can mean “right,” in the many subjective senses of this English word. In the broadest sense, ius embraced the whole of the Roman legal system (iura populi Romani). Ius could also refer to a field of the law: public, private, natural, and so on, or even to an exceptional provision for certain groups of people (ius singulare). Ius can indicate the status of a person, whether legally independent (sui iuris) or under the power of another (alieni iuris). Ius also referred to the place where the praetor administers the law. For instance, the expression in ius vocatio (calling the defendant before the magistrate) was the technical term in Roman law for the act by which civil proceedings were initiated.

The legitimacy of ius lay in the tradition of the Roman community recognized by citizens. Norms, rules, standards, and statutes were not properly a new creation of the legal order but an expression of the vitality of that tradition of ideas, usages, and customs (mores maiorum). The Roman jurist Celsus (D. 1.1.1pr) elegantly defined ius as “the art of goodness and fairness” (ius est ars boni et aequi). This definition is close to that offered by the jurist Paul on natural law (D. 1.1.11): “what always is fair and good” (id quod semper aequum ac bonum est). Just as medicine is the art of healing, so law was the art of doing justice. And law, like medicine, was to be sought for its own benefit. According to the Roman jurist Ulpian (D.1.1.10.1= Inst. 1.1.3), the three basic principles of the law were: to live honestly, not to harm anybody, and to render to everyone his or her own. In this famous sentence, ius is synonymous with justice.

From the fourth century, the participle derectum (or directum) was introduced into legal vocabulary to describe the perfection of justice and fairness. In the term derectum, the moral and the juridical dimensions are indissolubly connected. Directum means “directed,” “guided,” “correct.” Ius directum (right law) is the law that determines the right direction, the good way, the correct path for citizens to follow in social intercourse. Specifically, it referred to law that embodied the values of stoicism and, particularly, of Christianity.

From directum comes the English word right, the German word Recht, the Spanish word derecho, the French word droit, the Italian word diritto, and the Portuguese word direito, among others. It can be said that ius expresses the religious origin of law, whereas derectum (right) represents the inescapable relation between law and morality. In the idea of a right, the moral and legal connotations are inseparable, as rights touch upon personal claims and social order alike.

Ius publicum and ius privatum

The distinction between public and private law was not of any technical significance for Roman jurists, but it was a general classification root...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Preface
• Abbreviations
• Chronological tables
• PART I: Roman law in historical context
• PART II: Roman law in action
• General bibliography
• Index