Roman law
The Roman law (in Latin, Ius Romanum) was the legal system that governed the citizens of Ancient Rome. Roman law, due to its great complexity, practical applicability and technical quality, is still today the basis of continental law and contemporary civil codes, and is studied in the law schools of most countries that use continental law. Its historical importance and influence in the science of Law, which also extends to common law countries, is manifested in the survival of numerous Latin legal institutions today, such as the mortgage or the theory of contract, and in the large number of Latin legal expressions.[citation required]
Its validity extends from the founding of Rome (according to tradition, on April 21, 753 BC) until the middle of the 6th century AD. C., time in which the compiling work of Emperor Justinian I took place, which since the Renaissance was known under the name of Corpus Iuris Civilis (Corpo del Derecho Civil). The Corpus stands out for its legal complexity and for its profound influence on the science of law and is often considered the most influential legal text in the history of humanity. Roman law is the foundation of countries with civil law and extends its influence to important aspects of common law and other legal systems.
Roman law is broadly divided into public law and private law, just like contemporary law. Likewise, branches of current law, such as criminal law, tax law or administrative law, existed in Ancient Rome. The following periods can be distinguished:
- The monarchy, from the middle of the 8th century to the C. (foundation of Rome) until the expulsion of Rome from King Tarquinio the Sovereign on 509th. C.
- The Roman Republic, from 509 to C. In the years 451 and 450 BC the Law of the XII Tables was published, which constitute the basis of the republican Roman law. At this time, the State is based on the balance of powers: thus, the judges are democratically elected by free men in the popular assemblies, which also approve the laws; the magistrates exercise the functions assigned to them, while the Senate is responsible for issuing resolutions, called senate consultations, which in practice had the force of law. The political crisis in Rome in the 1st century BC finally ends with the total degeneration of the republican system, which culminates in the granting, in practice, by the Senate of the absolute power of the Roman State to Octavian Augustus on 27 BC.
- The Principality, from 27 to C. until the middle of the centuryII. At this time, the State was authoritarian, subject to the auctoritas of the emperor or prince, hence his name. Some famous emperors were: Augustus (27 BC-14), Caligula (37-41), Nero (54-68), Trajan (98-117) and Adriano (117-138). Under these last Rome reached its maximum territorial dimension: 5 million km2., configuring itself as one of the great world powers of the time.
- The Dominate or Absolute Empire, from the mid-centuryII until the 476, year in which the Roman Empire of the West disappears. At this time, the Emperor has absolute power. The Emperor is the one who dictates the so-called "imperial constitutions" (not confusing with modern constitutions). In 380, there is the conversion of the Empire from ancient Roman religion to Christianity through the Thessalonica Edict, under the rule of Theodosius I the Great. This emperor divides the Western and Eastern Empire and gives it to his sons Honorius and Arcade, respectively. The German invasions lead to the decline and disappearance of the Western Empire, which separates the Late Antiquity from the Middle Ages.
- Finally, the government of Justinian I (527-565) in the Eastern Empire, a time in which the justinian compilation is carried out, whose publication dates from 549 AD. The work is composed of the Code, the fifty decisions, the Digest or Pandectasthe institutions and the Novels. Compilation is the basis of Roman law and thanks to it legal texts of Roman jurists of great legal technique and historical value or importance that have managed to be preserved. The texts of the Corpus have been worked by jurists since their publication and to the present. With capital in Byzantium (then Constantinople and currently Istanbul), it conquered all Italy, the coast of North Africa and Southeast of Hispania. After the death of Justinian, the State gradually loses much of these territories and is often called a different term: Byzantine Empire; for the Empire becomes a state of its own medieval nature.
Currently, Roman law is the object of study of an international legal discipline, Roman Law, whose headquarters are law schools around the world. By virtue of this international character, Roman law is cultivated in various languages, mainly Italian ("lingua franca" of Romance), followed by German and Spanish. Until the middle of the XX century there were important contributions in French, but today this situation has varied downwards; English is a language of minority use in the cultivation of the discipline, although it is accepted as a scientific language in most publications. Spanish was consolidated as a scientific language in this discipline from the second half of the XX century, thanks to the scientific height that It reached the Spanish Romanesque, commanded by Álvaro d'Ors and continued by his disciples.
The definition of Roman law is better understood if it is built from the understanding of its fundamental notions and its system of sources. However, these do not remain identical throughout the history of Roman law, but vary both in number and in value within the source system itself. It is this system that provides key notions to understand what in Rome is understood by law. However, it is possible to anticipate that the expression ius is the one used to point to the right. This expression is opposed to that of fas, which designates the divine will. This clear delimitation between law and religion is evident in testimonies dating from the s. III a. C., but this is not valid for the first times, as will be seen. In turn, the expression ius will serve to identify various categories thereof, such as ius civile, ius naturale, ius honorarium, or ius gentium, to name a few of the most relevant.
Meaning of the expression "Roman law"
When using the expression «Roman law», various meanings can be indicated.
- In the first sense this expression denotes a past historical fact, that is, the set of legal rules governing the Roman people from its foundation to the fall of the Empire.
- A second sense identifies Roman law with the books in which the legal order was contained, that is, the Corpus Iuris Civilis or civil law body, collection of Roman legal books made in Constantinople by order of the Byzantine emperor Justinian in the centuryVId. C.
- Finally, with this expression you can also designate the legal tradition that has survived after the fall of the Roman Empire from the West until today.
Sources of law from the foundation of Rome to the XII Tables
The first of these sources is the customs of the ancestors or mos maiorum. It is a customary law, which progressively differs from moral and religious norms, with which it shares the same origin.
Sources of knowledge
Justinian
They constitute the Corpus iuris civilis. The compilation work carried out by Emperor Justinian I has been known by this name since the Middle Ages. In the first half of the century VI d. C. are added, in addition, the imperial constitutions of this emperor after the compilation, which give rise to a quarter of the Corpus Iuris Civilis, called Novellæ.
- The Institutions, synthesis of precepts and doctrines in four small books. Written for the study of law.
- The Digest, gathering of fragments of works of thirty-four great Roman jurisconsults, forming fifty books. It's the bulkiest part of the Corpus.
- The Code, collection of imperial rescripts dictated by several emperors.
- The Novel (of the expression novellæ leges = new laws), constitutions promulgated by Justinian after publishing the compilation composed of the previous three parts.
Extra-Justinian
- (a) Fragments of works by jurists of the classical period, generally preserved through the re-establishments made in the post-classical period.
- Gay institutions; elementary manual of this jurisconsult of the time of Antonio Pio.
- Fragments of the work Sententiæ or Sententiarium libri V ad filiumattributed to Paulo. Knowledge that, especially for criminal law, completes a partial manuscript of the work acquired and published by the University of Leiden in 1954.
- Them Tituli ex corpore Ulpiani, denomination that is usually given to the fragments of a legal work, the identification of whose author is unsure. This source is also known as Epitome Ulpiani and like Regulæ Ulpiani.
- The very small part of the work ResponsaPapinian; discovered in a scroll found in Egypt.
- An appendix grammar, of Dositheus; it consists of pieces of a classic legal work, used for exercises.
- Them Scholia Sinaīticaso called for having been discovered in a convent of Mount SINAB. It corresponds to a Greek commentary on a work of the Ulpian jurisconsult.
- (b) Collection containing also imperial constitutions.
- Vatican Fragmenta, remains of a private collection of classic jurist passages and imperial laws, which must have been done in the last years of the centuryIV and first of the V, and were found in a palimpsest of the Vatican library. (2) The law of the twelve tables did not meet its objective, since the privileges for the patricians continued to be preserved, and consequently the great inequalities with the plebeyos were followed, the marriage between patricians and plebeyos was prohibited, the penalties maintained their hardness and the Gentiles as heads of the Gens and maintained their hegemony and authority, but the plebeyos had an apparent tranquillity since the law of the twelve civil form disappeared.
Background
The birth of Roman law is due, among other things, to the existing division in Roman society between patricians and plebeians. However, before the year 451 B.C. c.-450 a. C., the existence of a unified system for the peninsula is not known, for which it is necessary to go back to classical Greece, considered the cradle of Western civilization, and in particular to the so-called Attic period or Attic Greek law, from where It is believed that some of the provisions that are present in the Law of the XII Tables were permeated.[citation required]
Roman legal traditions were in the hands of the patricians and all matters related to what we know as law fell to the Pontifex Maximus, evidently patrician, known as pontifical law. The plebeians did not know exactly how they were going to be judged and normally the patricians applied the pontifical tradition as it suited their interests. For this reason, one of the plebeian claims, in the image of what had happened in the cities of the Greek archaism, requested the codification of the tradition in the form of laws. To do this, the Senate agreed to send a commission to Greece to find out about the laws of the cities, and then it was decided to abolish the patrician magistracies and the plebeian tribune, handing over power to a commission of decemvirs, who had to codify the laws. Roman laws in a period of one year. This commission elaborated X(10) tables of laws that were quite fair and, therefore, favorable to the commoners, but, since the work was not finished, a second decemviral commission was appointed, much more conservative, which elaborated the last two tables, with clearly anti-plebeian laws, which, for example, prohibited mixed marriages. This commission tried to perpetuate itself in power, but it was deposed and the magistracy system began to function again. The result was the first known and structured legal body, called the Law of the XII Tables, from the year 451 BC. C., and which were publicly exhibited in the Roman Forum.
In the year 367 B.C. C., the Leges Liciniæ-Sextiæ culminated the equalization process between patricians and plebeians, allowing the latter's progressive access to magistracies and priesthoods, although the first Pontifex Maximus commoner had to wait more than a century.
The legislative compilation was carried out cumulatively through the Edicts of the Praetor. From the Law of the XII Tables, the Praetors assumed the jurisdictional function, and in order to classify new cases they issued an Edict at the beginning of their term in which they indicated that it was punishable, in which they assumed the edicts of previous praetors as their own, and corrected or abolished the provisions received.
In the beginning there were only two praetors, one, Prætor Vrbanus, was dedicated to judging matters in which Roman citizens participated, while the other, Prætor Peregrinus, dealt with cases in which only non-citizens were involved. The cases dealt with were quite varied, but most derived from commercial matters. Thus, commercial relations forced the creation of the precedent of the so-called contractual law, a right ultro citroque obligatio (which binds both parties), from which the so-called Ius Gentium or law of nations.
The Roman legal system became more and more complicated, since the Tribunes of the Plebs through the Comitia Tributa elaborated Plebiscites on the most varied matters, political, economic, jurisdictional, while the The Senate, through resolutions called Senatus Consultum, created jurisprudence.
With the advent of the Empire, the emperors assumed the role of Tribunes of the Plebs with the exercise of the Tribunicia Potestas, which allowed them to legislate through imperial Edicts and Constitutions. For their part, the provincial governors had jurisdictional powers and could issue their own laws for their provinces, but these could be appealed by the provincials before the Senate and/or the Emperor.
The result of all this set of provisions was an enormous and cumbersome apparatus of laws of different ranks, often contradictory, which made necessary the appearance of the figure of jurisconsults (or Jurists), who tried to simplify the set law and form legal doctrine, which could also be applied to new cases. Among them, Ulpiano, Papiniano, Herenio Modestino, Gayo and Paulo stand out.
The first attempt to fully systematize the law is due to the Eastern Emperor Theodosius II, successor of Arcadius. Under his patronage, the Codex Theodosianus was drawn up, which in turn served as the basis for the creation of law in the new Germanic kingdoms that succeeded the Roman Empire in the West. This code was recognized as a source of law by the Emperor Honorius, uncle of Theodosius II. The Breviarum Alarici or Lex Romana Visigothorum, drafted by the Visigothic king Alaric II, is a direct heir of the Codex Theodosianus.
However, the number of legal provisions and cases not covered by the Codex Theodosianus was high, so Emperor Justinian sponsored the compilation of all the provisions in the Corpus Iuris Civilis, which consists of the Institutiones or general principles of law, the Digest or collection of legal opinions of jurists inherited from the past for the consultation of judges and magistrates in the resolution of cases, from the Codex Iustinianus or compilation of laws in force from Republican times to the writing of Justinian's Legal Corpus, and the Novellæ, already in Greek, which collect the laws issued in Byzantium from Justinian.
The Visigothic monarch Recesvinto promoted a new compilation that replaced the Breviary of Alaric, giving rise to the Liber Iudiciorum, which was added to in the following reigns. This compilation was recovered from the IX century by the Kingdom of León and became the basis of Hispanic law until the Seven Games of Alfonso X El Sabio.
Stages in Roman law
1. Ancient or quiritarian law from 753 a. C to 450 B.C. c.
- It extends along the Monarchy and the principles of the Republic.
2. Preclassic law of 450 a. C to 130 B.C. c.
- It extends well into the Republic.
- It begins with the publication of the Law of the XII Tables (451-450 BC).
3. Classical law of 130 a. C to 230 AD. c.
- It extends from the end of the Republic to the end of the Principality.
4. Postclassic law of 230 AD. C to 527 AD. c.
- It extends along the Dominate.
- Strong influence of Christianity.
5. Justinian law of 527 d. C to 565 AD. c.
- It extends in the Eastern Empire and coincides with the government of Emperor Justinian.
- Important compilation work done by Justiniano with repercussion to date today.
Postclassic
Post-classical Roman law is the term for the period in the history of Roman law that spans from the first half of the III century until the compilation ordered by Justinian, which coincides with the Roman political period of the Dominated or Under Empire (Diocletian's accession to power in AD 284, until Justinian's death in 565).
Reception of Roman law in Europe
Roman law spread as a result of university education that began in Bologna in the 12th century, and more specifically thanks to the work carried out by the grammarian and jurist Irnerius, whose method, consisting of making brief textual clarifications or glosses and terminological distinctions, was subsequently progressively developed by the so-called Glossators, among which Azón (professor in Bologna between 1190 and 1229) and Acursio (compiler of the glosses of predecessors in a Glossa ordinaria) stand out.). However, it was not until the appearance of Bartolo de Sassoferrato (a disciple of Cino da Pistoia and considered by many Roman scholars as one of the most influential jurists of all time) in the 14th century, when Roman law achieved great prestige. Bártolo, who, despite his short life, left an extensive body of work based on commentaries, monographic treatises and opinions, was the greatest architect and promoter of common Roman law, and who, together with canon law, originated the utrumque ius, which represents the foundation of European legal culture.
Starting in the XIV century, England presented a characteristic legal tradition, different from that of the civil law in Europe, although it resembled to a greater extent the operating mode of the Roman jurists and the lack of interest in judicial evidence. The European reception of common law had some importance, although it was somewhat late, in Germany, where it was the subject of a scientific elaboration that receives the name of Pandectas law.
The Renaissance brought with it the discrediting of the method used by Bártolo, consisting of the use of texts from the Corpus Iuris as arguments of authority. But, faced with this methodological conception (the so-called mos Italicus ), a new one with erudite overtones was opposed, which tried to use the texts of the Corpus Iuris as sources of knowledge to the reconstruction of Roman legal history, within the framework of other sources, such as literary or archaeological (mos Gallicus).
Influence and importance
Roman law is considered an excellent means of legal education. The great Roman jurists, mainly from the classical period (between 130 BC and 230 AD), shone for their ability to create new institutions, with their pragmatic embodied in the praetorian edict, always seeking the achievement of the ideal of justice from the Greek philosophy of suum cuique tribuere (give each his own). Leibniz compared them to mathematicians who applied their principles as algebraic formulas. Likewise, Roman law is essential to understand Roman history and literature, since Roman citizens were initiated into the practice of law and had a natural inclination towards its study.
Roman law is the foundation of civil and commercial law in most countries:
- La common law It was originally based on Roman law, before becoming a tradition itself in England, from which it expanded to the United Kingdom (with the exception of Scotland), the United States and much of the old British colonies.
- In contrast, so-called continental law systems are based more directly on Roman law; the legal system of most countries in continental and South America fall into this category, often through the Napoleonic Code. These are generally called Latino systems.
Private law —especially European-continental law— was born directly from Roman law through the Napoleonic codification based on the Digest. That is where all the institutions existing today have their origin, some a little more remotely. The new Chinese civil code, which entered into force on January 1, 2021, has been carried out based directly on the Digest, which has revitalized the importance of Romance, to the clear detriment of the civil doctrine that to date had supported the birth of the new civil codes, born in the 80s and 90s in Africa and in the ex-Soviet countries. In the West, the structure of civil law still responds to directives and criteria of Roman law, with greater intensity in those related to the regulation of property rights, especially obligations. Likewise, as Antonio Fernández de Buján emphasizes, there are multiple and varied lessons that the study of constitutional, administrative, fiscal, criminal and international principles and norms in the field of public law, ius publicum, provides., roman.
Its influence softens with regard to family law, whose institutions, the ius comune and the Catholic Church developed during the Middle Ages, in any case the Law of Inheritance or incapacitation (turpitudo), closely related to Family Law, have their origin in Roman Law. With regard to commercial law, commercial law, criminal law as well as public law, its influence is being studied during the last decades. For many years, Roman Law studies have focused on the study of private law institutions, which has been to the detriment of other areas in which it is equally of great importance. As the publications of the main publishers of Roman Law demonstrate, in recent years attention to the influence of Roman Law in the aforementioned areas has been rapidly increasing.