Roman law
Roman law is the legal system of ancient Rome, including the legal developments spanning over a thousand years of jurisprudence, from the Twelve Tables, to the Corpus Juris Civilis ordered by Eastern Roman emperor Justinian I.
Roman law also denoted the legal system applied in most of Western Europe until the end of the 18th century. In Germany, Roman law practice remained in place longer under the Holy Roman Empire. Roman law thus served as a basis for legal practice throughout Western continental Europe, as well as in most former colonies of these European nations, including Latin America, and also in Ethiopia.
English and Anglo-American common law were influenced also by Roman law, notably in their Latinate legal glossary. Eastern Europe was also influenced by the jurisprudence of the Corpus Juris Civilis, especially in countries such as medieval Romania, which created a new legal system comprising a mixture of Roman and local law.
After the dissolution of the Western Roman Empire, the Roman law remained in effect in the Byzantine Empire. From the 7th century onward, the legal language in the East was Greek, with Eastern European law continuing to be influenced by Byzantine law.
Development
The jurist Sextus Pomponius said, "At the beginning of our city, the people began their first activities without any fixed law, and without any fixed rights: all things were ruled despotically, by kings".Before the Twelve Tables, private law comprised the Roman civil law that applied only to Roman citizens and was bonded to religion. The ius civile of the time was undeveloped, with attributes of strict formalism, symbolism, and conservatism, for example, as embodied in the ritual practice of mancipatio. It is believed that Roman law is rooted in the Etruscan religion, emphasizing ritual.
Twelve Tables
The first legal text of the Roman law is the Law of the Twelve Tables, dating from the mid-fifth century BC. The plebeian tribune, C. Terentilius Arsa, proposed that the law should be written in order to prevent magistrates from applying the law arbitrarily. After eight years of political struggle, the plebeian social class convinced the patricians to send a delegation to Athens to copy the Laws of Solon; they also dispatched delegations to other Greek cities for a like reason.In 451 BC, according to the traditional story, according to Livy, ten Roman citizens were chosen to record the laws, known as the decemviri legibus scribundis. While they were performing this task, they were given supreme political power, whereas the power of the magistrates was restricted. In 450 BC, the decemviri produced a set of laws inscribed on ten tablets, which were considered unsatisfactory by the plebeians. A second decemvirate is said to have added two additional tablets in 449 BC. The resulting Law of the Twelve Tables was subsequently approved by the people’s assembly.
Modern scholars tend to challenge the accuracy of Latin historians. They generally do not believe that a second decemvirate ever took place. The decemvirate of 451 BC is believed to have assumed the leading functions in Rome and included the most controversial points of customary law. Questions concerning Greek influence on early Roman Law are still much discussed. Many scholars consider it unlikely that the patricians sent an official delegation to Greece, as the Latin historians believed. Rather, the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.
The original text of the Twelve Tables has not been preserved. The tablets were probably destroyed when Rome was conquered and burned by the Gauls in 387 BC. The fragments which did survive show that it was not a law code in the modern sense. It did not provide a complete and coherent system of all applicable rules or give legal solutions for all possible cases. Rather, the tables contained specific provisions designed to change the then-existing customary law. Although the provisions pertain to all areas of law, the largest part is dedicated to private law and civil procedure.
Early republican law
Among the most consequential laws passed during the early Republic were the Lex Canuleia, which allowed marriage ' between patricians and plebeians; the Leges Liciinae Sextiae, which restricted the amount of public land ' that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian; the Lex Ogulnia, which permitted plebeians to hold certain priestly offices as pontiffs or augurs; and the Lex Hortensia, which stated that the determinations of plebeian assemblies would henceforth be binding on the entire populus Romanus, both patricians and plebeians.Another important statute from the Republican era is the Lex Aquilia of 286 BC, which may be regarded as the root of modern tort law.
Jurisprudence
Rome's most important contribution to European legal culture was not the enactment of well-drafted statutes, but the emergence of a class of professional jurists and of a legal science. This was achieved in a gradual process of applying the scientific methods of Greek philosophy to the subject of law, a subject which the Greeks themselves never treated as a science.Traditionally, the origins of Roman legal science are connected to Gnaeus Flavius. Around the year 300 BC, Flavius is said to have published the formularies containing the words which had to be spoken in court to begin a legal action. Before the time of Flavius, these formularies are said to have been secret and known only to the priests. Their publication made it possible for non-priests to explore the meaning of these legal texts. Whether or not this story is credible, jurists were active, and legal treatises were written in larger numbers before the 2nd century BC. Among the famous jurists of the republican period are Quintus Mucius Scaevola, who wrote an influential and voluminous treatise on all aspects of the law, and Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero. Thus, Rome had developed a very sophisticated legal system and a refined legal culture when the Roman republic was replaced by the monarchical system of the Principate in 27 BC.
Pre-classical period
In the period between about 201 to 27 BC, more flexible laws developed to match the needs of the time. In addition to the old and formal ius civile, a new juridical class was created: the ius honorarium: "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law." With this new law the old formalism was abandoned, and more flexible principles of ius gentium were used.The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. Though the praetors were not legislators and did not technically create new law when he issued his edicts, the results of his rulings enjoyed legal protection and were in effect often the source of new legal rules. A praetor's successor was not bound by the edicts of his predecessor. However, he did take rules from edicts of his predecessor that had proved to be useful. In this way a constant content was created that proceeded from edict to edict.
Thus, over the course of time, parallel to the civil law and supplementing and correcting it, a new body of praetoric law emerged. In fact, praetoric law was so defined by the famous Roman jurist Papinian : "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam". Ultimately, civil law and praetoric law were fused in the Corpus Juris Civilis.
Classical Roman law
The first 250 years of the current era are the period during which Roman law and Roman legal science reached its greatest degree of sophistication and influence. The law of this period is often referred to as the "classical period of Roman law". The Roman Republic had three different branches: the Assemblies, the Senate, and the Consuls. The assemblies passed laws and made declarations of war; the Senate controlled the treasury; and the consuls had the highest juridical power.The jurists worked in different functions, including giving legal opinions at the request of private parties; advising magistrates, especially the praetors; and helping the praetors draft their edicts, in which they publicly announced, at the beginning of their tenure, how they would handle their duties, and the formularies, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.
The jurists also produced various legal punishments. Around 130 AD, the jurist Salvius Iulianus drafted a standard form of the praetor's edict, which was used by all praetors from that time onwards. This edict contained detailed descriptions of all cases, in which the praetor would allow a legal action and in which he would grant a defense. The standard edict thus functioned like a comprehensive law code, even though it did not formally have the force of law. It indicated the requirements for a successful legal claim. The edict therefore became the basis for extensive legal commentaries by later classical jurists like Paulus and Ulpian.
During the pre-classical and classical period, such laws emerged as the separation of ownership and possession; contract and tort as distinct sources of obligations; standard types of contracts regulated in most continental codes; the Institutes of Gaius, which invented a system of private law based on the division of all material into personae, res and actiones. Gaius's system was used for many centuries, and has been recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the French Code civil and the German BGB.