Download Roman Civil Law

History
Bernard W. Hoeter, PhD
Roman Civil Law
Part I
T
his overview of Roman
Civil Law covers the period
from the founding of Rome,
in 753 BCE,1 to the death
of Emperor Justinian in 565 CE.
It encompasses the various
political stages of Rome: The
Monarchy, the Republic, and the
Empire. It spans over 1000 years
of legal history. No wonder Roman
Civil Law is often misunderstood.
1Modern historians, to please non-Christians,
replace AD (Anno Domini, or Year of Our
Lord) with CE (Common Era). Similarly,
BC (Before Christ) becomes BCE (Before
Common Era).
Rome’s system of Civil Law
is undoubtedly its greatest legacy
to the modern world. Roman law
forms the basis of all legal systems
of Western Europe, with the exception
of England and Scandinavia. Roman
law covers places as diverse as
Louisiana and Quebec, South
America and Japan, Abyssinia and
South Africa.
An article on Roman Civil
Law for The Scrivener cannot be
comprehensive. By its very nature,
it must be condensed.
History
The roots of the notarial profession
reach back into antiquity. We know
people performed quasi-notarial
functions in Mesopotamia, Egypt,
Palestine, and Greece.
Even in Canada, the influence
of Roman law is visible.
The true ancestors of the present
Notaries are the Roman scribae and
notarii. Their historical development
was shaped by Roman Civil Law that
in 535 CE culminated in the Corpus
Juris Civilis of Emperor Justinian. Part
of his new law was novella 44, the first
Notaries Act.
Rome’s system of Civil Law
is undoubtedly its greatest
legacy to the modern world.
©iStockphoto.com/Jeremy Voisey
About 600 years later
(circa 1150), the Glossarists of the
Law School of Bologna rediscovered
the Novels of this Roman emperor.
To understand the functions
of a modem Notary, a basic knowledge
of Roman Civil Law is important.
The road to true notarial proficiency
and professional pride lies in the
understanding of Roman Civil Law.
The Colosseum, Rome
48
The Society of Notaries Public of British Columbia
The term Roman Civil Law covers
the entire legal system of the Roman
state (Kingdom, Republic, and
Empire). We are looking at a period
of over 1200 years. Thus, Roman Civil
Law becomes a very broad subject.
The meanings of Roman legal terms,
however, changed continuously during
the course of this millennium.
Volume 18 Number 1 Spring 2009
Originally, magistrates were
ministers of the king—high-ranking
administrative officials without executive
powers (imperium). During the Republic,
magistrates became members of a ruling
body, the state executive. A praetor, the
most superior of the magistrates, served
the early Republic as consul. Later, the
title of praetor was used for the “lesser
brothers” of the consuls, who served
as ministers of justice.
In about 366 BCE, the praetor
became the Chief Justice of Roman
citizens. About a century later,
a second praetorship was created. The
Peregrinus Praetor was the supreme
judge for foreigners. During the Empire,
the title praetor often was given to the
governors of Roman provinces.
Originally, there was 1 Imperial
praetor, then 2, and after Sulla (138 – 178 BC), there were 8.
A judex was not a judge as we
know judges today—independent
judicial officers—but rather a private
functionary—a man of prestige, an
arbitrator chosen and agreed by the
litigants. The judex took his procedural
instructions from the praetor. He
considered the evidence adduced,
listened to the arguments of the
advocates, sought the opinion of learned
jurists, then pronounced his binding
decision, known as an award.
Using Latin words for certain
modern terms that, as far as I am
aware, have no recognized English
equivalents, may sound strange.
Calling a judex a judge, however—
the aegides, Chiefs of Police, the
Censor, a Director of Statistics and
Classifications, or the quaestor,
a Crown Prosecutor, or for the period
of the mid-Republic, a President of the
Treasury Board—may identify their
positions to the modern mind, but will
impart associations that are foreign to
the original.
Sources of Roman Civil Law
Periods of Roman Civil Law
Rome, the tradition goes, was founded
by Romulus in 753 BCE. Until the
expulsion of the last Etruscan king,
Tarquin the Proud, in 510 BCE, Rome
had been, according to legend, ruled
by seven elective kings. The bulk
Volume 18 Number 1 Spring 2009
of the population of the regal period
of Rome consisted of • the patricians;
• the landed nobility;
• the plebeians, masses of the
urban citizens;
• the clients, serfs, and freedmen
who attached themselves to
a patrician’s household; and
• slaves, originally prisoners-of-war,
and their children.
During the monarchy, the
Comita Curiata—curia means clan—
the patricians in the assembly, elected
kings for life. Once chosen, Kings
had imperium—absolute, sovereign
power. The kings and their magistrates
(ministers) were advised by the Senate,
a consultative council of patricians.
The history of Roman
Civil Law can be divided
into two distinct epochs.
The Comita Centuriata, the general
assembly consisting of patricians
and plebeians, advised the king on
military matters and elected the senior
magistrates.
Following the overthrow of royal
rule in 510 BCE, the supreme state
power now vested in two consuls,
who were elected every year from
the ranks of the patricians by the
comita centuriata. The consuls were
heads-of-state and, in times of war,
commanders-in-chief.
The history of Roman Civil Law can
be divided into two distinct epochs.
1.The period of local (parochial) law
known as the jus civile. This strict
and unbending law was concerned
with Roman citizens only. It was
the law of the Republic to the
beginning of the second century.
2.The period of universal law,
the so-called jus gentium that
originally dealt exclusively with
aliens and subjects who did
not possess Roman citizenship.
During the time of the Empire,
it applied to all free men.
The jus gentium was a law
that combined simplicity with
The Scrivener
a surprising comprehensiveness,
a law in which equity and the
conceptions of honour, trust, and
good faith (bona fides)—without
which commerce could not
develop—were given free play.
The jus gentium was based on
the jus honorarium magistratemade law that had grown
in the praetorian courts.
This administrative law,
in addition to customary and the
old statutory law, became the
most potent factor in the legal
systems of Rome.
The development of Roman Civil
Law, in the light of sociopolitical
history, may be divided into five
important periods.
1. The kingdom and the infant
Republic, prior to the XII Tables, when law was unwritten customary
law, linked to religion
(753 – 450 BCE)
2. The early Republic from the times
of the XII Tables (circa 450 BCE)
to the final conquest of Italy
by the Romans in 272 BCE.
During this period, jus civile was
dominant. This law was rigid and
based largely on the XII Tables.
It was interpreted by patrician
priest-lawyers of the College
of Pontiffs.2
3.The late Republic from the time
of the Social Wars (91 – 88 BCE)
to the establishment of the
constitutional empire, the
principate under Emperor Augustus (27 BCE). This was
the blossom time of praetorial
law. The jus honorarium and its
offspring, the jus gentium, formed
2The College of Pontiffs (comparable to a
Council of Cardinals) was a religious body
presided over by the pontifex maximus. The
pontiffs and their pontifex were not chosen
particularly for their religious outlook,
however. They were mostly conservative
patricians who held public office as a
normal part of a prominent Roman’s career.
In 63 BCE, after returning from Gaul,
Julius Caesar was elected Pontifex
Maximus, a post he held until at least 46
BCE. In that year, he introduced the Julian
calendar. Revised by the order of Pope
Gregory XIII in 1582, it is still in use today
as the Gregorian calendar.
49
Every legal institution still
shows, even after a long
time, the traces of its
origin in this or that stratum
of the general development…
If cancer care
and research in BC
is your client’s cause,
your guidance is key.
We have the information you need to help your clients reach
their philanthropic and financial goals.
To ensure that your client’s gift benefits cancer care and research in B.C.
through the BC Cancer Agency, please ensure that the full legal name of
our organization: BC Cancer Foundation is used in estate and financial
planning documents.
To find out more about the BC Cancer Foundation or obtain a free gift planning
kit, please contact Isabela Zabava at 604.877.6157, [email protected]
or visit us online at www.bccancerfoundation.com/giftplanning
Fully - Supported
Online Meets
Open
Close the deal.
A Subsidiary Company of 0838513 B.C. Ltd.
www.dyedurhambc.com
or connect through BC Online
50
The Society of Notaries Public of British Columbia
a universal cosmopolitan law,
embracing Romans and nonCitizens alike.
4. The Principate, which saw
the Classical Age of Roman
Jurisprudence from Emperor
Hadrian (died 138 CE) to
Diocletian (died 313 CE)
5. And finally, the absolute empire,
the Dominate, the period
of legislation by Imperial Decree
under the military emperors from
Constantine (died 337 CE) to
Justinian the Great (died 565 CE)
W. Kunkel said,
The legal systems of the present
day—except the English law—
resemble a garden laid out and
cultivated according to a master
plan. Roman law, on the contrary,
was one in which the conditions
of nature prevailed. Organisms
which are dying away stand
immediately beside new shoots
forcing their way upward. Every
legal institution still shows, even
after a long time, the traces of its
origin in this or that stratum
of the general development, and
can for that reason be fully and
properly administered only by
reference to its history. In a word,
Roman law is a legal system
particularly rooted in history.
The next issue of The Scrivener will
contain a further article on Roman
Civil Law. s
Dr. Hoeter was the Secretary of The
Society of Notaries Public of BC from
1969 to 1986. He suffered a stroke
in 2006. Abed since then,
he is assisted by UBC
student David Leggett,
who copies and types
dictation and does
supplemental research.
Volume 18 Number 1 Spring 2009