The Ius Civile

By: Anavitarte, E. J.*

The ius civilis or ius civile, constituted all that right that the Romans considered their own, either because it had been created democratically in the elections or the senate, or because its use within the civitas was universally respected.

Thus, this set of legal norms are the essence of Roman law, since they constitute its axiological ─moral─ and legal nucleus; whose main sources were the law (lex), and other norms with the force of law, such as imperial constitutions, plebiscites, and senateconsults.

Due to this identity nature, the ius civile applied exclusively to the members of Roman civil society, that is, to its citizens, and within this were the quiritary rights, the power of the paterfamilias, or the mancipatio.

Definition of Ius Civile

The ius civile, or Roman civil law, is the basic structure of Roman law, and could be considered the legal innovation that allowed the creation of the legal system and the institutions that are still part of our civil law today.

Ius Civile: First law of Romans, exclusive for citizens, formalistic and rigid.
[1]

Its pragmatic definition is the law that the Romans used only for those belonging to Roman civil society, but technically each people could have their own civil law. Hence the concept transcended ancient times.

The criterion to create a concept about the scope of civil law is the quote that the Corpus Juris Civilis makes with reference to the definitions of the law:

Ius civile est, quod neque in totum a naturali vel gentium recedit nec per omnia ei servit: itaque cum aliquid addimus vel detrahimus iuri communi, ius proprium, id est civile efficimus.
(Civil law is, which in its entirety neither comes from nature, nor from humanity, nor depends on them: and therefore, we add it or otherwise dispose of it in common law, a proper law, this is, we do it civil)
Ulpiano ^[2]
(author's translation*)

[1]: Ius civile | The Glossary of Roman Law (Spanish).

[2]: Ulpiano | Digest: Lib. 1, Tit. 1, Sec. 6.

Characteristics of the Ius Civile

At a general level, it can be said that the ius civile regulates the relationships of individuals within Roman civil society, so in principle its greatest characteristic is (a) that it is exclusive, that is, it could only apply to those who were part of the civitas .

Exclusive
Positive
Pecuniary
Organic

From this premise, we can limit the legal scope that these regulations would have, for example, any foreigner was excluded from the scope of action of civil law, because they did not belong to the populus romanus , these foreigners would then be regulated by the ius gentium.

But even, it is also circumscribed to the legal figures created among the Romans, that is (b) to positive law, since those legal relationships, pre-existing to Roman law such as cognation, were not considered possible to modify, since they were not part of the ius civile , but natural law, or ius naturalis .

As a Civil Law

And as it will be seen, most of the norms that the Romans created for themselves, tried to create a different law, if you will, more "civilized", for which there was (c) a strong pecuniary emphasis, thus, physical punishments were substituted With pecuniary compensation, the way in which assets should be acquired and transferred, or the rights of people to inherit them, were regulated.

"Sed ius quidem civile ex unaquaque civitate appellatur, veluti Atheniensium (…) sic enim et ius quo populus Romanus utitur ius civile Romanorum appellamus…
(It is the law called civil when it appeals to the people, as in the Athenian case, that is why we call the civil law [ius civile] the one created by the Roman people)
Justinian I ^[3]
(author's translation*)

Institutions that mostly still survive in contemporary law, especially in countries with systems of Romano-civil tradition, whose roots are found in the ius civile. As a result, it can be said that the ius civile was the legal order of the Romans, and constituted the broadest of the normative bodies of ancient Rome, with the ius gentium remaining in the background─or rather late.

And finally, the ius civile constitutes an organic whole, since it would regulate the relations of citizens, within Roman civil society, attending only to the norms created by the Romans themselves, constituting one of the first glimpses of a complete legal system.

[3]: Justinian I | Institutes: Vol. 1, Tit. 2, Para. 6.

Pecuniary Approach

The ius civile dealt mainly with social relations whose effects would create pecuniary rights, since these types of relations are the most prone to disagreements within a civil society. In this way, inheritances, marriages, parental authority, ownership of rights, easements, property, among others, would come to regulate.

It is the source of the Western concept of private law, especially for countries within the Western continental French tradition, and although the Romans would not make a clear distinction between civil and criminal law, throughout the Middle Ages this division was made evident, to set up a law in which matters of ownership of things are mostly dealt with.

However, during the preclassic period, the ius civile would have universal coverage for any matter that fell on members of the civitas, including criminal prosecutions, which at this time no longer had the purpose of persecuting the accused person, but pecuniary compensation. of the people affected.

Sources of the Ius Civile

Given this positive character that the ius civile had , that is, a product of human endeavor, its main legal source was the laws, understood broadly as any written norm applicable to any citizen.

Law
Plebiscites
Responsa prudentium
Custom

Diagram of the sources of Roman law — Ius civile and Roman law

So the edicts, the imperial constitutions, the plebiscites, and the senateconsults, would also be part of the sources of the ius civile .

During the period of archaic law, its regulation was subject to the custom of the ancestors ( mores maiorum ) interpreted by the pontiffs, but as Rome expanded and became an urban society, written norms would end up being created for most of the civil law.

And it is worth clarifying that jurisconsults may or may not be called a source of civil law, because for a period of at least three hundred years, many jurisprudents enjoyed the iusresponndi ex auctoritate principis . But in general, both because of the means that authorized them to be a source, and because of their referential use, it is advisable not to take them as sources.

Effects of the Ius Civile

In general, and taking into account the characteristics that have been seen of the ius civile , ^[¶] this had as a body of law, at least three notorious effects, important to understand the way in which the Romans conceived their law, and how this it helped to shape subsequent legal systems.

Utilitatem publicam
Ius actionis
Ius praetorium

The first of these effects would be that of (a) utilitatem publicam (public utility), that is to say, that the ius civile had as one of its main effects, that of protecting all citizens of the civitas under a criterion of public utility and Pacis (general peace), so the jus civile proscribe people to use the ─e armas─ violence even within the limes of the city.

Second, and precisely because of this approach (b) people possessed the ius actionis (right of action), thus compensating for the absence of the use of violence, they could use the right, through legal actions, and thus persecute whoever wronged them ─ius accusandi─.

And finally, to prevent any circumstance from overflowing the waiting for the trials, the public utility (c) endowed the praetor with the right to order and prohibit certain behaviors through the injunctions ─ ius praetorium ─ guaranteeing the use of civil avenues.

Ius Gentium and Ius Civile

Since the ius gentium can acquire such a broad meaning ^[¶] it must be understood when speaking of the ius gentium and the ius civile , the scope of its application, since for the Romans the law was not universal, but depended on the origin of the person.

Thus, we have that the ius civile delimits the norms that could be applied to the Romans, and whose origin was the same Roman civitas , as the mancipatio, or even, when the figure existed before Roman law but had been specially adopted by it, such as for example the right to marry ─ ius connubii ─.

And on the other we have the ius gentium , which defined the rules that applied to any person, regardless of their national affiliation.

It is often said that the ius gentium was applied to foreigners in Rome ─ pilgrims', which is true, but it also applied to the Romans themselves, hence the pilgrim praetor regulated situations not only between foreigners, but also between foreigners and Romans.

Ius Quiritium and Ius Civile

When speaking of the ius quiritium and the ius civile , one does not speak of different fields of action than the norms, but rather of a relationship of essential and accessory, since both apply to the same subjects, and each one is part of the other. ; so it is even stated that they are the same, but this is more debatable.

For example, although the Quirites formed Rome, the Greeks or Hispanics also came to acquire the status of Romans, the Quirites being an ethnic designation, and the Romans a nation designation.

Thus, the ius quiritium , constitutes the essential nucleus of rights that the Romans possessed, very similar to a bill of rights, insofar as the ius civile is less essential, and could regulate any subject among the Romans, even trivial ones, such as keeping clean the public forum.

Etymology of Ius Civile

The terms "ius civile" or "ius civilis" are often used interchangeably to refer to this body of rules unique to the Romans, and both forms are correct. Differing in that (a) the first uses the nominative declension, while (b) the second uses the genitive declension.

«Ius civile»: civil law.
«Ius civilis»: law of a civil source.

In Spanish there is no verb conjugation that represents the genitive, but it can be replaced roughly by the word "of".

Therefore, the literal translation of ius civile would be: "the civil law" , and of ius civilis it would be: "the civil law" .

In classical texts both forms are used depending on the context, as it could also be done in Spanish, by adding the particle "de" to any noun phrase.

Roman Law

Definition
Characteristics
1. Civil law
2. Pecuniary matters
Sources
Effects edit
1. Ius gentium
2. Ius quiritium
Etymology

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Anavitarte, E. J. (2019, December). The Ius Civile. Academia Lab. https://academia-lab.com/2019/12/29/the-ius-civile-of-the-roman-law/