Roman Law › What is it, Characteristics, Sources, Periods

Roman Law

What is Roman Law

Roman law is the legal norms and laws that were applied to citizens from the founding of Rome (753 BC) until the middle of the 6th century AD, when Emperor Justinian I gathered all the previous legal compilations in a single legal system called Corpus Juris. Civilis.

Roman law was divided into two types:

Private law : these are the laws that regulate commercial transactions.
Public law : refers to all laws created to protect citizens.

Roman law (collected in the Corpus Juris Civilis ) became the most relevant legal text in history and served as the basis for the creation of legal systems throughout the world. In addition, it was a point of reference for the evolution of the legal sciences.

6 characteristics of Roman law

Roman law has a series of peculiarities that define it beyond the passage of time, and that have become the pillars that support its action.

1. It has three basic precepts

Roman law has three principles, formulated by the jurist Domicio Ulpiano (praetorian adviser during the mandate of Emperor Alexander Severus (222-235):

First: live honestly ( Honeste vivere) : it is about leading an honest and transparent public life, because the opposite of it implies violating the laws and, therefore, being subject to sanctions.
Second: do not harm anyone ( Alterum non laedere) : if harm is done to third parties, then it is mandatory to restore in some way the physical, material or moral injury through the application of the law.
Third: give each one his own ( Suum cuique tribuiere) : if the agreements are fulfilled, then each one will receive what corresponds to him as agreed. The breach of an agreement implies an act of inequality for one of the parties, therefore the administration of justice is necessary.

2. He is traditionalist

Although the way of administering the law changed, the institutions and fundamental laws were maintained, or in any case, a part was preserved. Roman law could evolve, but the legal creation was anchored in the traditions that preceded it.

3. It's formal

It refers to the rigidity of the legal act. This is manifested in the creation of models or formulas that could be applied in different cases, avoiding discretionary interpretations of the law.

Formalism is also expressed in the solemnity surrounding the act of administering justice.

4. It is realistic

When the written laws did not serve to solve a case, they resorted to what the tradition said ( mores maiorum ) to adjust the law to the reality of the moment.

5. Is individualistic

It refers to the separation of legal meanings depending on their field of application, for which a clear differentiation was made between the social, moral and legal sphere.

6. It's simple

It refers to the ease or naturalness of applying the law and solving current cases, based on how the law was applied in the past.

What are the sources of Roman law?

The "sources of law" refer to the origins of legal knowledge. In Roman law, they are divided into three categories:

Customs and tradition ( mores maiorum )

They are all the customs that passed from the founders of Rome to the following generations through oral tradition, therefore, there is no written record of these rules.

This lack of precision originated the Law of the 12 Tables, a series of written norms that were publicly exposed so that anyone could interpret them.

Justinian sources

They are all the collections ordered by Emperor Justinian I in the Corpus Juris Civilis , and in turn are divided into four major works:

Codex Vetus : compilation of the imperial constitutions.
Digest : list of doctrines that were still in force and could be put into practice.
Codex repetitae praelectionis : a revision of the Codex Vetus.
Novellae constitutiones : compiled from minor decrees, organized into more than 100 novels.

Extrajustinian sources

As its name indicates, these are all legal texts or materials that are not included in the Justinian Code, such as:

Responsa : work of the jurist Emilio Papiniano, in which he comments on real legal cases.
Institutions : work of the jurist Gayo, in which he compiles jurisprudence of the Roman system.
Sententiarium libri V ad filium : compilation of the Roman jurist Julius Paul.
Ars grammatica appendix : it is actually a grammar exercise book by the translator Dositeo, which in its appendix has an extract from a legal work.
Tituli ex corpore Ulpiani : fragments of a legal text by an unknown author.
Scholia Sinaītica : fragments of a Roman legal text translated into Greek.
Fragmenta Vaticana : pieces of Roman legal works discovered in the Vatican.
Collatio legum Mosaicarum et Romanorum : comparison between the Roman laws and those of Moses.
Syrian-Roman book : compilation of Roman laws used in a part of the eastern empire.
Archaeological or legal material : tables, papyri or documents that record legal acts.

Extra-legal sources

Refers to any written record of Roman legal practices, such as testimonies of:

ancient historians,
writers,
philosophers,
speakers and
any work that can be considered a source of legal knowledge.

An example of an extra-legal source is Historia Augusta , a compilation of the life and work of the Roman emperors who ruled between AD 117 and 284. This work was written by at least 6 historians at different times.

If you want to delve into this topic, you can read Sources of law.

What are the periods of Roman law?

According to the way in which the laws were interpreted and justice was administered, 3 periods of Roman law are identified:

Archaic period (754 BC - 450 BC)

It is the stage that corresponds to the founding of Rome, when the laws were oral customs and traditions called "customs of the ancestors" ( mores maiorum).

These unwritten laws were administered by the pontiffs and contemplated 5 essential rights for Roman citizens:

Right to civil marriage ( Ius connubii ).
Right to vote ( Ius suffragii ).
Right to trade ( Ius commercii ).
Right to hold public office ( Ius honorum ).

Law of the 12 tables

In that same period it became necessary to have written laws, which prompted the creation of the Law of the 12 Tables , which became the first legal text of the Romans.

The Law of the 12 Tables owes its name to the tables of wood and bronze where they were written. They were exposed to the public as a way to avoid subjective interpretations of the law.

For this reason, the 12 tables were also called the Roman Equality Law and were the first written legal order of the Romans.

Preclassic period (450 BC - 130 BC)

At this stage, the administration of justice no longer corresponds only to the pontiffs, but to the praetor, the most authoritative figure after the consul, the most important magistrate of the time.

The praetors filed their legal pronouncements in documents called edicts. The edicts could be edited, abolished or expanded by the praetor himself or by his successor.

The Ius civile and the Ius gentium

In Rome there were two praetors: the one in charge of the affairs of Roman citizens and another in charge of the pilgrims (people who were not citizens of Rome).

Most legal matters involved pilgrims, so a law was necessary that included pilgrims and Roman citizens. Thus arose the law of nations (Ius gentium), a complement to the law of Roman citizens (Ius civile).

Creation of the figure of the jurisprudent

During this period, those who have dedicated themselves to the study of law are recognized as "jurisprudents" and are considered to have socially recognized knowledge. Jurisprudents do not interpret or administer the law, they only study it and transmit their knowledge to their disciples.

Classical period (130 BC - 230 AD)

This stage was characterized by the application of the Form Process Law ( Lex Aeubutias ), a new legal system based on formulas.

The essential parts of the formula were:

Designatio : appointment of judge.
Demostratio : demonstration of facts through the story.
Intent : the plaintiff (the person demanding justice) expresses what he intends to achieve.
Condemnatio : as expressed in the intentio , the judge decides whether to convict or acquit.

The purpose of the Form Process Law was to systematize the administration of justice to reduce the possibilities of unfair interpretation.

Creation of the figure of the lawyer

In Rome, the provincial governors could create their own laws. As time passed, the situation became chaotic, as there were laws that contradicted each other. To counteract the situation, the figure of the jurist was created, whose function was to systematize and simplify the laws in such a way that they could be applied in a general way in future cases.

Postclassic period (230 AD - 527 AD)

This era is characterized by absolute control of the emperor in all spheres of power, including the laws. This translated into an invisibility of the science of law, since the application of justice was done from the power, with the inequalities that this implied.

Imperial constitutions

The emperors dictated the laws through the so-called imperial constitutions, which could be promulgated in four ways:

Edict : rules on general issues that would later reach the rank of laws.
Mandate : instructions from the emperor to governors.
Decree : sentences passed by the emperor at the end of a trial.
Rescript : Answers of the Emperor on questions relating to law.

Importance of Roman law today

Today, Roman law is a compulsory subject of study in most Western law schools. Roman law created an orderly legal system and provided essential concepts in current legislation, such as:

Jurist or jurisconsult ( iuris consultus ) : refers to an expert in law. It can be an academic, lawyer or judge, depending on the country where the term is used.
Patria potestad ( patria potesta ) : the power of the father over minor children. In some current legislation the mother is also included.
Magistrate ( praetor ) : referred to the ancient praetors who administered Roman justice. It is now used to refer to public officials of the judiciary.
Senate ( senatus ) : it was the institution in charge of deliberation and legislative decision-making. Currently the Senate is also called the Chamber of Senators, National Assembly or Congress).

The legacy of Roman law in contemporary legislation can be seen in three major legal systems:

Continental law

They are the laws applied in European countries or in territories colonized by them. Continental law has a strong basis in Roman law and its norms are systematized in legal codes and applied by the courts.

Common law or Anglo-Saxon law

It was the legal system created in medieval England from the contributions left by Roman law.

Today, the common law is applied in the Anglo-Saxon countries and in Hong Kong, as part of the British heritage left during the period of English colonization.

In Anglo-Saxon law, the law is expressed through judicial decisions that, in case of ambiguity, must be clarified by the courts.

Canon law

During the eleventh century, the Catholic Church underwent great transformations during the Gregorian reform, promoted by Pope Gregory VII. These restructurings included its legal system, which was created using Roman law as a theoretical basis and which continues to this day.

Canon law laws are interpreted by a permanent pontifical commission, a figure created by Benedict XV in 1917.

Update date: February 07, 2021.

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Roman Law › What is it, Characteristics, Sources, Periods