Roman Law
ROMAN LAW
Roman law consists of the law of the Roman Republic and Empire, from the Twelve Tables (c. 451–450 b.c.e.) to the Corpus Juris Civilis (Body of the Civil Law) of the sixth century c.e. Within the context of Roman law, the term civil law is usually used specifically to refer to the Corpus Juris Civilis, the compilation that was ordered by Emperor Justinian I (ruled 527–565 c.e.) and directed by the jurist Tribonian.
SOURCES AND ORGANIZATION
Roman law grew amorphously from several sources over a thousand years. These sources were divided into unwritten law (ius non scriptum) and written law (ius scriptum). Unwritten law referred to custom in Roman times, although by the early modern period in Europe, customs were accepted as written law in many places. Written law for the Romans was divided into six categories: acts (leges), resolutions or plebeian statutes (plebiscita), senate resolutions (senatus consulta), imperial laws or constitutions (constitutiones principium), magistrates' edicts (edicta), and jurists' responses or interpretations (responsa prudentium). Contradictions in the laws occurred because these numerous sources were neither coordinated nor routinely collected.
The early attempts to organize Roman law included the Institutes of Gaius in the second century c.e. and the Theodosian Code under Emperor Theodosius II in 438 c.e., but these were incomplete. The final compilation of the Corpus Juris Civilis under Justinian in the sixth century was issued in four parts: the Digest (533), the collection of judicial interpretations of the laws; the Code (534), the imperial laws and rescripts Tribonian's committee chose to keep; the Institutes (533), a condensed version to be used by first-year law students; and the Novels (until 565), new imperial laws.
MEDIEVAL ROMAN LAW
Roman law continued to influence European law after the fall of the Western Roman Empire to Germanic tribal rule, but it did so not as territorial law but as merely the personal law of the section of the population claiming to be Roman rather than Germanic. Among the Germanic kingdoms of western Europe, rulers such as the Visigothic kings of Spain used vulgarized forms of Roman law for their Roman subjects. The basis for these laws was usually the Theodosian Code rather than Justinian's, since the former was disseminated before the collapse of the Western Roman Empire. Justinian's corpus was not compiled until after Roman power was largely lost in the West. Roman law also influenced western Europe, because it was used as the basis of canon (church) law in the Corpus Juris Canonici (Body of Canon Law), and Roman civil and canon law also became the basis of the ius commune, a set of legal principles generally accepted throughout Europe. Within each developing state of the late Middle Ages and the early modern period, Roman law had varying impact on local and royal laws, depending on the geographical proximity to the old Roman imperial areas and individual developments within the separate states.
Although it was taught continuously in the East, it was not until the late eleventh century that the West rediscovered the Corpus Juris Civilis of Justinian, and the text was then studied and taught at the medieval universities throughout western Europe beginning in the twelfth century. This new study of the Corpus Juris Civilis began in Bologna, Italy, at the university's law school, and it became popular for a number of reasons. The Roman Empire of Justinian and the medieval Holy Roman Empire were conflated in the minds of many. Justinian was seen as a Holy Roman Emperor and his laws as imperial legislation. In addition, twelfth-century jurists recognized that Roman law represented a high development of legal thought, and they saw Roman law as "written reason" and hence superior to other law.
University scholars not only studied the Corpus Juris Civilis, they also added their own explanations and interpretations, which often became as important as the original text. The earliest of these scholars were known as the glossators, who wrote marginal or interlinear comments called glosses on the entire text of Justinian. In this process they discovered some inconsistencies and contradictions that Tribonian's hurried committee had not managed to eliminate. Glossators tried to resolve such discrepancies by interpretation. Between 1220 and 1250 the glossator Franciscus Accursius compiled a collection of selected glosses, which became known as the Glossa ordinaria (or Magna glossa ).
Following the glossators were the commentators (or postglossators). They did not merely continue the glossators' work but also contributed their own legal knowledge by writing original commentaries on the Corpus Juris Civilis and the Glossa ordinaria. They also applied the law to their own time by writing legal opinions in response to questions concerning real cases. Two of the most significant of the early commentators were Bartolus of Saxoferrato and Baldus of Ubaldis. The commentators were most active in the fourteenth and fifteenth centuries, and, like the glossators, most were Italian.
RENAISSANCE HUMANISM AND ROMAN LAW
New approaches to Roman law developed with Renaissance humanism in the fifteenth and sixteenth centuries. Humanists applied philological techniques to the study of the Roman law to determine what it had been meant to say, and they also studied the laws and their meaning in the original context of Rome. Although begun in Italy with the work of Andrea Alciato, this movement reached its height in the French historical school of law in the sixteenth century. Because of their humanist approach, these scholars were able to see the Corpus Juris Civilis in historical context, as a product of its own time and place. They saw it as useful but not infallible, and their work identified many problems in the law itself and in the medieval studies of it. Guillaume Budé, Jacques Cujas, Hugues Doneau, and François Hotman, among others, contributed to this movement in France, as did Ulrich Zasius in Germany. Hotman's Anti-Tribonian (1567) was particularly critical of Justinian's compilation and elevated French law in its place. These scholars established the historicity of Roman law and removed its claim to authority over contemporary societies, even though it could still be seen to a certain extent as "written reason."
ROMAN LAW IN FRANCE, GERMANY, AND GREAT BRITAIN
France. Italy and southern France were the areas most continuously influenced by Roman law because they had been governed by the Romans themselves and by Germanic versions of Roman law codes. These were also areas where universities developed early, as did Renaissance humanism. Southern France had adopted Roman law and was known as the land of the written law (pays de droit écrit), while the northern two-thirds of France was subject to diverse local customary laws (pays de droit coutumier). This caused some tension, and French legal humanists tried to resolve some of the problems by carefully applying Roman law. French kings continually tried to increase the uniformity of the country's laws in the sixteenth through eighteenth centuries. Roman law sometimes provided the source of these common laws, but so did the Custom of Paris, which was often seen as a more appropriate source for France. Partly under influence of the "written reason" of the Corpus Juris Civilis, the French tried to codify their customs, frequently using the organization of Roman law as a model for the structure, if not for the laws themselves. This is particularly notable in Antoine Loisel's Institutes Coutumieres (1607) and Étienne Pasquier's L'interprétation des institutes de Justinian (1609).
Germany. In Germany, the reception of Roman law began around 1500, when the ius commune was given precedence over local customs in the imperial supreme court. Use of Roman law in this form was particularly attractive in the Holy Roman Empire, because there were over three hundred independent local jurisdictions, some quite backward administratively. Roman law provided a model for them and also created some form of unity in the fragmented empire.
Great Britain. Scotland had introduced Roman law indirectly in the form of ius commune, because it was distinct from English common law, and the Scots wished to establish their independence from English control. English common law developed independently from Roman law, but some courts in England, the Equity and Admiralty Courts, for example, were influenced by Roman law, at least in the form of the ius commune or through canon law, which church courts continued to use in England even after the Reformation.
THE WIDER INFLUENCE OF ROMAN LAW
The growth of the influence of Roman law was a gradual and continuous historical process; the law was adapted to territories well beyond those its Roman originators could have imagined and to uses of which they had not conceived. The Spanish acceptance of Roman law meant that it spread beyond western Europe and came to the Spanish territories of the New World.
Roman law was used to support various, even opposing, ideas. For instance, its maxims could support both absolutism and popular government: while the maxim "What pleases the prince has the force of law" (Quod principi placuit legis habet vigorem) was used as an argument for royal absolutism in various countries, on the other hand, "What touches all must be decided by all" (Quod omnes tangit, ab omnibus approbetur) was used to justify representative government and even rebellion against oppressive regimes. Roman law's influence persisted beyond the end of the early modern period, as it served as the main model for Napoleon Bonaparte's Civil Code (1804).
See also Budé, Guillaume ; Humanists and Humanism .
BIBLIOGRAPHY
Primary Sources
Krueger, Paul, ed. Justinian's Institutes. Translated by Peter Birks and Grant McLeod. Ithaca, N.Y., 1987. The Institutes is the Roman law work that is most accessible to the beginner in legal studies. This is one of several editions.
Mommsen, Theodor, and Paul Krueger, eds. The Digest of Justinian. 4 vols. Philadelphia, 1985. English translation edited by Alan Watson. The Latin and English texts are on opposing pages.
Scott, S. P., trans. and ed. The Civil Law: Including the Twelve Tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo. 17 vols. in 7. Cincinnati, Ohio, 1932. Reprint, New York, 1973.
Watson, Alan, ed. The Digest of Justinian. 2 vols. Philadelphia, 1998. Revision of Watson's 1985 English translation.
Secondary Sources
Bellomo, Manlio. The Common Legal Past of Europe, 1000–1800. Translated by Lydia G. Cochrane. Washington, D.C., 1995.
Caenegem, R. C. van. An Historical Introduction to Private Law. Translated by D. E. L. Johnson. Cambridge, U.K., and New York, 1988.
Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford, 1985.
Watson, Alan. Roman Law and Comparative Law. Athens, Ga., 1991.
Kathleen A. Parrow
Roman Law
ROMAN LAW
Between 753 b.c. and a.d. 1453, the legal principles, procedures, and institutions of Roman law dominated Western, and parts of Eastern, civilization. The legal systems of western Europe, with the exception of Great Britain, are based on Roman law and are called civil-law systems. Even the common-law tradition found in the English-speaking world has been influenced by it. In the United States, the common law has been paramount, but Roman law has influenced the law of the state of Louisiana, a former French territory that adopted a French civil-law code.
Roman law began as an attempt to codify a set of legal principles for all citizens. In 450 b.c. the Twelve Tables were erected in the Roman Forum. Set forth in tablets of wood or bronze, the law was put on public display, where it could be invoked by persons seeking remedies for their problems. Though the texts of the tablets have not survived, historians believe they dealt with legal procedures, torts, and family law issues.
From 753 to 31 b.c., the Roman republic developed the jus civile, or civil law. This law was based on both custom and legislation and applied only to Roman citizens. By the third century b.c., the Romans developed the jus gentium, rules of international law that were applied to interactions between Romans and foreigners. Over time the jus gentium became a massive compendium of law produced by magistrates and governors.
Romans divided the law into jus scriptum, written law, and jus non scriptum, unwritten law. The unwritten law was based on custom and usage, while the written law came from legislation and many types of written sources, including edicts and proclamations issued by magistrates, resolutions of the Roman Senate, laws issued by the emperor, and legal disquisitions of prominent lawyers. Roman law concerned itself with every type of legal issue, including contracts, inheritance of property, family law, business organizations, and criminal acts.
Roman law steadily accumulated during the course of the empire, and over time it became contradictory and confusing. In the early sixth century a.d., the Byzantine emperor justinian i, appointed a commission to examine the body of law and determine what should be kept and what should be discarded. From this effort came the Corpus Juris Civilis, a codification of Roman law that became the chief lawbook of what remained of the Roman Empire.
The decline of the Roman Empire also led to the diminution of interest in Roman law in western Europe. The Corpus was unknown to western scholars for centuries. During the twelfth century, however, Roman law studies revived in western Europe. In the late eleventh century, a manuscript containing part of the Corpus was discovered in Pisa, Italy. The remainder of the compilation was soon recovered, and schools where Roman law could be studied were established in Bologna, Italy, and then elsewhere in Europe. By the twelfth century, commentaries on the Corpus Juris Civilis appeared, and in time men trained in Roman law found posts in secular and ecclesiastical bureaucracies throughout Europe.
As a result, the legal systems of the Catholic Church and of almost every country in Europe were influenced by Roman law. Around the year 1140, the scholar Gratian prepared the Concordance of Discordant Canons, or Decretum. TheDecretum was the largest and best-organized compendium of canon (church) law up to that time. Gratian used the Corpus Juris Civilis as his model, and later canonists studying the Decretum used the same methods that Roman lawyers applied to the Corpus Juris Civilis. Many scholars became masters of both Roman and canon law.
Among the nations of western Europe, England, which had already established a viable common-law tradition and a system of royal courts by the time that Roman law became accessible, felt the impact of the revival of Roman law the least. Nevertheless, english law drew upon Roman admiralty law, and the crimes of forgery and libel were based on Roman models. English ecclesiastical courts applied canon law, which was based on Roman law, and the universities of Oxford and Cambridge taught canon and Roman law. Scholars have noted the similarities between the Roman and English actions of trespass, and the equitable method of injunction may have been derived from canon law. Much of western European commercial law, which contained Roman law, became part of English law without much change.
The legal systems of most continental European nations owe their basic structures and categories to Roman law. Scholars point to several reasons for this "reception" of Roman law. In some areas such as southern France where remnants of Roman law had survived the collapse of the Roman Empire, the Corpus Juris Civilis helped to explain the institutions that were already in existence. More important in ensuring the reception of Roman law were the political principles that it contained. Law that had been produced in a centralized state under a sovereign emperor could be used to buttress the arguments of the European rulers as they struggled to assert their sovereignty over the feudal nobility.
At the same time that many of these rulers were consolidating their power, they were also expanding royal administration. This created new positions in government that often were filled by men with training in Roman law. Such men compiled collections of unwritten customs, drafted statutes, and presided over the courts, all of which provided opportunities for the penetration of Roman law.
Roman law did not displace local customs. Instead, its influence was subtle and selective. A compiler of unwritten German customs might arrange the collection according to Roman principles of organization. A royal judge confronted with an issue on which customs of different regions in the kingdom disagreed might turn to Roman law, the only law in many cases that was common to the entire kingdom. Similarly, Roman law could be used when local customs offered no solutions. For example, the Roman law of contracts was particularly influential because European customary law had developed in an agrarian economy and was often inadequate for an economy in which commerce played an increasingly larger role.
After 1600 the reception of Roman law slowed in most countries but did not entirely disappear. In nineteenth-century Europe, the Corpus Juris Civilis provided inspiration for several codifications of law, notably the French Code Napoléon of 1804, the Austrian code of 1811, the German code of 1889, and the Swiss codes of 1889 and 1907. Through these codes, elements of Roman law spread beyond Europe. The Code Napoléon served as a model for codes in Louisiana, Québec, Canada, and most of the countries of Latin America. German law influenced Hungarian, Brazilian, Japanese, and Greek law, and Turkey borrowed from Swiss law. In addition, the law of both Scotland and the Republic of South Africa derives from Roman law.
Commentators, while noting the differences between common law and civil law, which is based on Roman law, also point out that these differences can be overemphasized. Common-law countries, like the United States, enact statutes and even comprehensive codes, such as the uniform commercial code, while civil-law countries have laws that have been developed by the courts and not enacted through legislation. Roman law itself contained these conflicting impulses of codification and judicial interpretation.
further readings
Appel, Peter A. 2002. "Intervention in Roman Law: A Case Study in the Hazards of Legal Scholarship." Georgia Journal of International and Comparative Law 31 (fall).
Astorino, Samuel J. 2002. "Roman Law in American Law: Twentieth Century Cases of the Supreme Court." Duquesne Law Review 40 (summer).
Hoeflich, M.H. 1997. Roman and Civil Law and the Development of Anglo-American Jurisprudence in the Nineteenth Century. Athens: Univ. of Georgia Press.