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ROMAN LAW
Development and Influence
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Definition
Codifications
Germanic laws
Canon law
Ius comune: common law of Europe
National codes
Definition
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1. The legal system of ancient Rome
2. System of law developed in the
Republic of Rome, the Roman Empire
and the Byzantine Empire
Roman kingdom (753 BC509 BC)
Expansion of the Roman
Republic (509 BC-27 BC)
Expansion of the Roman Empire
(Western: 285-476 AD; Eastern: 3001453)
The Law of the Twelve Tables
(Lex Duodecim Tabularum)
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In the earliest period –laws kept secret
by pontifices
In 451 BC a board of ten men
(Decemvirate) was appointed to draw
up a code
Lex Duodecim Tabularum
(450 BC)
The Law of the Twelve Tables
(Lex Duodecim Tabularum)
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“...every citizen should quietly consider each
point, then talk it over with his friends, and,
finally, bring forward for public discussion
any additions or subtractions which seemed
desirable” (Livy)
Formally promulgated in 449 BC
Drawn up on 12 tablets posted in the Forum
Romanum
The Law of the Twelve Tables
(Lex Duodecim Tabularum)
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not a law code in the modern sense
not a complete and coherent system of all
applicable rules
contained specific provisions designed to
change the existing customary law
provisions belong to all areas of law, but the
largest part is dedicated to private law and
civil procedure
Excerpts from the Twelve
Tables
Tabula I: Civil Procedure
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If someone is called to go to
court, he is to go. If he does not
go, a witness should be called.
Only then should he be captured.
Excerpts from the Twelve
Tables
Tabula I: Civil Procedure
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When parties have made an
agreement, announce it. If they don’t
agree, they shall state their case in the
Forum before noon. They shall plead
together in person. After noon, let the
judge pronounce. If both are present,
the case shall end at sunset.
Roman law
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Rome's most important contribution to
European legal culture - not the enactment
of well-drafted statutes, but the emergence
of a class of professional jurists (prudentes,
or jurisprudentes) and of a legal science.
This was achieved in a gradual process of
applying the methods of Greek philosophy
to the subject of law, a subject which the
Greeks themselves never treated as a
science.
Roman law: 201 to 27 BC,
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development of more flexible laws to match the
needs of the time.
In addition to the old and formal ius civile a new
juridical class created: 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."
old formalism abandoned and new more flexible
principles were used
Praetors
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Adaptation of law to new needs- given
over to magistrates, esp. to praetors
Praetor - not a legislator; did not
technically create new law when he
issued his edicts (magistratuum
edicta).
results of his rulings enjoyed legal
protection (actionem dare) and were
often the source of new legal rules.
Praetor
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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 (edictum traslatitium).
Classical Roman law
 distinction between the legal right to use a thing (ownership)
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from the factual ability to use and manipulate the thing
(possession)
distinction between contract and tort
standard types of contract (sale, employment contract, hire
contract, contract for services)
Gaius (cc. 160) invented a system of private law based on the
division into personae (persons), res (things) and actiones
(legal actions). This system can be recognized in the French
Civil Code or the German Civil Code
Corpus Iuris Civilis
(Codex Justinianus)
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Most
comprehensive
code of Roman law,
compiled (529-35)
under Justinian I,
by commission of
jurists headed by
Tribonian
Corpus Iuris Civilis
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1. Codex or Code (collection of
imperial constitutions)
2. Digest of Pandects (selections from
classical jurists)
3. Institutes (textbook of elementary
rules)
4. Novels or Novellae (later
constitutions)
GERMANIC LAWS
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Laws adopted (5th-9th c.) after the
Germanic invaders of the Roman Empire
had created their governments
Leges barbarum incorporated much of the
older Germanic customary law
Largely concerned with penal law and
composition for personal injuries
Some of the codes - strong Roman influence
CANON LAW
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In the Roman Catholic Church, law of
the church courts, based on legislation
of councils, popes and bishops
Based on Roman law
Re-Emergence of Roman
Law in the West
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C. 1050 jurists rediscovered Roman law,
namely the compilations of Justinian,
especially his Digest
Scholars known as glossators, and later as
commentators, interpreted the compilations
and generated an influential body of
literature that came to be known as the jus
commune or common law of Europe
THE UNIVERSITY OF
BOLOGNA
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The oldest
university in the
world (1088)
THE UNIVERSITY OF
BOLOGNA
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Students who studied Roman law in
Bologna found that many rules of
Roman law were better suited to
regulate complex economic
transactions than customary rules;
Roman law was re-introduced into
legal practice
Sixteenth century
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The rediscovered Roman law
dominated legal practice in most
European countries.
A legal system, in which Roman law
was mixed with elements of canon law
and of Germanic custom
ENGLAND AND ROMAN
LAW
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The English legal system absorbed few elements of Roman
law:
1. English legal system – more developed than its continental
counterparts when Roman law was rediscovered (Henry II:
1154-1189)
2. Roman law - associated with the Holy Roman Empire and
the Roman Catholic Church - unacceptable in England (The
Act of Supremacy 1534)
English common law developed in parallel to Roman-based
civil law
THE FRENCH CIVIL CODE
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The practical application of Roman law
came to an end when national
codifications were made
In 1804, the French civil code came
into force
In the 19th century, many European
states adopted the French model or
drafted their own codes
Summary
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Law of the Twelve Tables (449 BC)
Corpus juris civilis (529-35)
Germanic customary law (5th-9th c.)
Canon law
University of Bologna (1088)
Glossators
Napoleonic Code (1804)