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Roman Civil Law.

Part I

This overview of Roman Civil Law covers the period from the founding of Rome, in 753 BCE, to the death of Emperor Justinian in 565 CE.

Modern 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).

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.

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.

Even in Canada, the influence of Roman law is visible.

An article on Roman Civil Law cannot be comprehensive. By its very nature, it must be condensed.

History

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.

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 (137-78 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 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.

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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 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 a surprising comprehensiveness, a law in which equity and the conceptions of honour, trust, and good faith (bonafides)--without which commerce could not develop--were given free play.

The jus gentium was based on the jus honorarium magistrate-made 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.

The 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.

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 a universal cosmopolitan law, embracing Romans and non-Citizens 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.


Part II: Roman Civil Law

The creation of the XII Tables was the outcome of hostilities between patricians and the ever-increasing number of plebeians. The clerical law of the royal period of Rome was jealously guarded by the priesthood. Gnaeus Flavius was the Secretary of Censor Appius Claudius who, ex officio, had access to the confidential law commentaries. Gnaeus took and published the secret catalogue of the all-important procedure forms with the connivance of his master.

The XII Tables were a landmark in the development of Roman law. They became public and secular when, according to legend, Gnaeus Flavius stole the secret commentaries from the priesthood in 304 BCE. From that time on, lay jurists, unhampered by pontifical control, shaped Roman Civil Law.

In 366 BCE, the consuls appointed the first praetor to relieve them of their steadily increasing duties involving civil jurisdiction. The praetor was chosen every year by the comitia centuriata. He became, in modern terms, the equivalent of a "Minister of Justice" of the Mid-Republic.

After the conquest of Italy (272 BCE), a second praetorship was established. From then on, there were two praetors--the (old) Praetor Urbanus, with jurisdiction over Roman citizens, and the (new) Praetor Peregrinus, responsible for noncitizens. Although the praetors had no legislative powers, they could issue administrative regulations--praetorial edicts that, in the course of time, came to include remedies at law; thus, Equity Law was born. Praetorian edicts were the basis for the Jus Honorarium (magistrate-made administrative law).

The Roman Republic declined because it was unable to settle the internal issue of patricians versus plebeians and its external administrative problems. They had become too complex following the subjugation of the Mediterranean world. In particular, the judicial and financial systems were now unmanageable under a system that changed its top administrators, the consuls, annually.

The Romans failed to see that an empire cannot be ruled like a city state. During the last years of the Republic, bloody civil wars led to murderous fratricide.

Romans longed for peace.

The Roman mind turned to a one-man deliverer. In 27 BCE, Octavianus became the first Roman quasi-emperor. He assumed the name Augustus and brought peace and order, the Pax Romana, to the Roman world.

The period of the quasi-emperors is known as the Principate. The able Roman rulers of the first and second centuries CE were called princeps (leader). They were the first citizens of a state that, although headed by a quasi-emperor, maintained the appearance of a republic. The quasi-emperors of Rome were citizens who held their positions as heads of state, commanders-in-chief, and high priests (pontifex maximus) for life, but not in hereditary succession. In the provinces of Asia Minor and North Africa, the emperor was worshiped as a god. The first quasi-emperors were men with abundant authority but who as yet had no legislative powers and were still responsible to the Senate. They administered the empire sufficiently well to offset the reigns of terror of such later emperors as Caligula (37-41 CE) and Nero (51-68 CE).

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During the Dominate, the period of the absolute monarchy starting with Emperor Diocletian (284 CE), the emperors usurped legislative power. During the Principate, the emperor had been able to influence only the development of the law. During the Dominate, he made the law. After Emperor Caracalla conferred Roman citizenship on all free males of any political community, regardless of where they lived in the Empire in 212 CE, imperial law now universally affected all subjects of the far-flung empire. It is presumed by some historians that Caracalla wished by the extension of citizenship to increase the yield of the 5-percent inheritance tax, which to that time could be levied only on Roman citizens. The Roman world was divided into the Western Empire (Latin--Rome) and the Eastern Empire (Greek Constantinople).

Roman civil law, the local law of Rome that had continued to exist at least in theory, was converted into a common law serving the entire empire. The community of Roman citizens, now ruled by one uniform and cosmopolitan civil law, covered the whole of the then-civilized world.

But the empire had become too large to be efficiently administered as a central power. In the year 364, Rome was sacked by invading German tribes in 410 (Goths) and 455 CE (Vandals). The Germanic Tribes who lived in Vandalusia (Spain), called Vandals, moved to North Africa and from there their fleet attacked and conquered Rome. Unlike the Goths, they did not respect church property and the Catholic Church branded the Vandals as terrorists. From here comes our modern use of the words vandal and vandalism.

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Soon after this far-reaching shock, the Western Empire collapsed.

The Eastern Empire survived the Germanic migrations. Justinian the Great ruled the Byzantine empire from 527 to 562. Under his rule, Roman law culminated in the Corpus Juris Civilis, the codification of a millennium of Roman Civil Law. Justinian's rule helped shape late Roman antiquity into medieval Europe. The 1000-year-long transformation of a Mediterranean super-state into the collection of Northern European nation states was to his credit.

Not only did Justinian weather the plague, he also saw the migrations of the Goths, Visigoths, Ostrogoths, and the Huns; the growth of Byzantine architecture; the arrival of the silkworm; and the emergence of Islam. Justinian was not the warrior hero of ages past but a superb statesman and a canny delegator.

Above all, Justinian was supported by his wife Theodora, daughter of a bearkeeper and a sometime prostitute. Theodora was a "racy comedienne." According to historian Procopius, she was a beautiful and passionate woman who was "sorry that nature had constructed her in a way that she could have sex only via three orifices."

Justinian's life was focused on several areas. He was the father of international jurisprudence and he fully supported his brilliant general Belisarius.

Concepts of Roman General Law

Jus was man-made law. It was opposed to the old Fas. In ancient Rome (753-509 BCE) Fas was generally understood as law declared by divine authority through priests, customarily Sacral Law.

Jus Non-Scriptum (unwritten law) was law that had arisen out of usage.

Jus Scriptum (written law), on the other hand, included that part of the law that was put into writing.

Jus Publicum (public law) was concerned with the relation of the individual and the state and included criminal, constitutional, ecclesiastical, and administrative laws.

Jus Privatum (Roman Civil Law) served the interest of individuals. It regulated their relationship to one another and consisted of the Law of Persons, the Law of Property, Family Law, the Law of Inheritance, and the Law of Obligations (contracts).

Jus Naturale (natural law) was essentially a philosophical concept that originated in Greece. It suggested there were rules of universal application derived from the common nature of all people, rules that ought to be observed by all mankind.

The old jus civile, characterized by principles rooted deep in an agricultural society based on clan organization, had constituted a law for Roman citizens exclusively. Foreigners had no rights in ancient Rome.

With the beginning of the 3rd century BCE, however, Roman law could no longer limit itself to its citizens while disregarding non-Romans. For economic reasons, it became necessary that Roman law should also cover the surrounding Italian people, the peregrini, whom Rome had conquered, and the citizens of her great trading neighbours, the Greeks and Carthaginians.

The edicts of senior magistrates, the praetors, and later also those of the aediles, the Edicta Magistratum created the jus honorarium, which swept away much of the rigidity of early Roman laws and, during the later Republic, introduced some form of equity.

Thus, the jus gentium was born, a law that incorporated much of the highly developed commercial law of the Greek city states. In time, it was applied universally.

The jus gentium was the mutual child of the jus naturale and the jus honorarium. Such law was in general use among all civilized people. Jus gentium regulated the relationship between Roman citizens and foreigners either living within the jurisdiction of Rome or trading with Romans. Later, the jus gentium became the dominant law governing the relationship of Roman citizens among themselves.

Jus gentium, an enlightened law, was a forerunner of what much later came to be known as the Law Merchant, later known as Substantive Law, which created rights and possessed the important characteristics of convenience and universality. It eventually replaced the old jus civile.

The sources of all Roman law were statutes leges. The leges regaie, enactments of the kings, were laws made by the kings of early Rome. Other statutes resulted from the Romans' deliberations in their various popular assemblies.

Bernard W. Hoeter, PhD

Dr. Bernard Hoeter was the Secretary of The Society of Notaries Public of BC from 1969 to 1986. He is assisted by UBC student David Leggett, who copies and types dictation and does supplemental research.
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Title Annotation:Special Report on the History of Law
Author:Hoeter, Bernard W.
Publication:LawNow
Geographic Code:1CANA
Date:Nov 1, 2010
Words:2731
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