Roman law

Before the Twelve Tables (754–449 BC), private law comprised the Roman civil law (ius civile Quiritium) that applied only to Roman citizens, and was bonded to religion; undeveloped, with attributes of strict formalism, symbolism, and conservatism, e.g. the ritual practice of mancipatio (a form of sale). 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".^[2] It is believed that Roman Law is rooted in the Etruscan religion, emphasizing ritual.^[3]

Twelve Tables

The first legal text 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.^[4] 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.^[4] In 451 BC, according to the traditional story (as Livy tells it), 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 (imperium), whereas the power of the magistrates was restricted.^[4] In 450 BC, the decemviri produced the laws on ten tablets (tabulae), but these laws were regarded as unsatisfactory by the plebeians. A second decemvirate is said to have added two further tablets in 449 BC. The new Law of the Twelve Tables was approved by the people's assembly.^[4]

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 included the most controversial points of customary law, and to have assumed the leading functions in Rome.^[4] Furthermore, 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. Instead, those scholars suggest, the Romans acquired Greek legislations from the Greek cities of Magna Graecia, the main portal between the Roman and Greek worlds.^[4] 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.^[4]

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 law and jurisprudence

Among the most consequential laws passed during the early Republic were the Lex Canuleia (445 BC), which allowed marriage —conubium— between patricians and plebeians; the Leges Liciinae Sextiae (367 BC), which restricted the amount of public land —ager publicus— that any citizen could occupy, and stipulated that one of the two annual consuls must be plebeian;^[5] the Lex Ogulnia (300 BC), which permitted plebeians to hold certain priestly offices; and the Lex Hortensia (287 BC), which stated that the determinations of plebeian assemblies —plebiscita— would henceforth be binding on the entire populus Romanus, both patricians and plebeians.^[6]

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. However, 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 (prudentes or jurisprudentes, sing. prudens) 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. Flavius is said to have published around the year 300 BC 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 a voluminous treatise on all aspects of the law, which was very influential in later times, 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, we can see the 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 is created: the ius honorarium, which can be defined as "The law introduced by the magistrates who had the right to promulgate edicts in order to support, supplement or correct the existing law."^[7] With this new law the old formalism is being abandoned and new more flexible principles of ius gentium are used.

The adaptation of law to new needs was given over to juridical practice, to magistrates, and especially to the praetors. A praetor was not a legislator and did not technically create new law when he issued his edicts (magistratuum edicta). In fact, the results of his rulings enjoyed legal protection (actionem dare) 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 (edictum traslatitium).

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 (142–212 AD): "Ius praetorium est quod praetores introduxerunt adiuvandi vel supplendi vel corrigendi iuris civilis gratia propter utilitatem publicam" ("praetoric law is that law introduced by praetors to supplement or correct civil law for public benefit"). 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. The law of this period is often referred to as the "classical period of Roman law". The literary and practical achievements of the jurists of this period gave Roman law its unique shape.

The jurists worked in different functions: They gave legal opinions at the request of private parties. They advised the magistrates who were entrusted with the administration of justice, most importantly the praetors. They helped 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 all kinds of legal punishments. Around AD 130 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. The new concepts and legal institutions developed by pre-classical and classical jurists are too numerous to mention here. Only a few examples are given here:

• Roman jurists clearly separated the legal right to use a thing (ownership) from the factual ability to use and manipulate the thing (possession). They also established the distinction between contract and tort as sources of legal obligations.
• The standard types of contract (sale, contract for work, hire, contract for services) regulated in most continental codes and the characteristics of each of these contracts were developed by Roman jurisprudence.
• The classical jurist Gaius (around 160) invented a system of private law based on the division of all material into personae (persons), res (things) and actiones (legal actions). This system was used for many centuries. It can be recognized in legal treatises like William Blackstone's Commentaries on the Laws of England and enactments like the French Code civil or the German BGB.

The Roman Republic had three different branches:

• Assemblies
• Senate
• Consuls

The assemblies passed laws and made declarations of war; the Senate controlled the treasury; and the consuls had the highest juridical power.^[8]

Post-classical law

By the middle of the 3rd century, the conditions for the flourishing of a refined legal culture had become less favourable. The general political and economic situation deteriorated as the emperors assumed more direct control of all aspects of political life. The political system of the Principate, which had retained some features of the republican constitution, began to transform itself into the absolute monarchy of the Dominate. The existence of legal science and of jurists who regarded law as a science, not as an instrument to achieve the political goals set by the absolute monarch, did not fit well into the new order of things. The literary production all but ended. Few jurists after the mid-3rd century are known by name. While legal science and legal education persisted to some extent in the eastern part of the Empire, most of the subtleties of classical law came to be disregarded and finally forgotten in the west. Classical law was replaced by so-called vulgar law.

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Mancipatio

Mancipatio

In Roman law, mancipatio was a solemn verbal contract by which the ownership of certain types of goods, called res mancipi, was transferred.

Etruscan religion

Etruscan religion

Etruscan religion comprises a set of stories, beliefs, and religious practices of the Etruscan civilization, heavily influenced by the mythology of ancient Greece, and sharing similarities with concurrent Roman mythology and religion. As the Etruscan civilization was gradually assimilated into the Roman Republic from the 4th century BC, the Etruscan religion and mythology were partially incorporated into ancient Roman culture, following the Roman tendency to absorb some of the local gods and customs of conquered lands. The first attestations of an Etruscan religion can be traced back to the Villanovan culture.

Patrician (ancient Rome)

Patrician (ancient Rome)

The patricians were originally a group of ruling class families in ancient Rome. The distinction was highly significant in the Roman Kingdom, and the early Republic, but its relevance waned after the Conflict of the Orders. By the time of the late Republic and Empire, membership in the patriciate was of only nominal significance.

Athens

Athens

Athens is a major coastal city in the Mediterranean and is both the capital and largest city of Greece. With its surrounding urban area’s population numbering over three million, it is also the seventh largest urban area in the European Union. Athens dominates and is the capital of the Attica region and is one of the world's oldest cities, with its recorded history spanning over 3,400 years and its earliest human presence beginning somewhere between the 11th and 7th millennia BCE.

Livy

Livy

Titus Livius, known in English as Livy, was a Roman historian. He wrote a monumental history of Rome and the Roman people, titled Ab Urbe Condita, ''From the Founding of the City'', covering the period from the earliest legends of Rome before the traditional founding in 753 BC through the reign of Augustus in Livy's own lifetime. He was on familiar terms with members of the Julio-Claudian dynasty and a friend of Augustus, whose young grandnephew, the future emperor Claudius, he exhorted to take up the writing of history.

Decemviri

Decemviri

The decemviri or decemvirs refer to official 10-man commissions established by the Roman Republic.

Imperium

Imperium

In ancient Rome, imperium was a form of authority held by a citizen to control a military or governmental entity. It is distinct from auctoritas and potestas, different and generally inferior types of power in the Roman Republic and Empire. One's imperium could be over a specific military unit, or it could be over a province or territory. Individuals given such power were referred to as curule magistrates or promagistrates. These included the curule aedile, the praetor, the consul, the magister equitum, and the dictator. In a general sense, imperium was the scope of someone's power, and could include anything, such as public office, commerce, political influence, or wealth.

Magna Graecia

Magna Graecia

Magna Graecia was the name given by the Romans to the coastal areas of Southern Italy in the present-day Italian regions of Calabria, Apulia, Basilicata, Campania and Sicily; these regions were extensively populated by Greek settlers. These settlers, who began arriving in the 8th century BC, brought with them their Hellenic civilization, which left a lasting imprint on Italy. They also influenced the native peoples, such as the Sicels and the Oenotrians, who became hellenized after they adopted the Greek culture as their own.

Gauls

Gauls

The Gauls were a group of Celtic peoples of mainland Europe in the Iron Age and the Roman period. Their homeland was known as Gaul (Gallia). They spoke Gaulish, a continental Celtic language.

Customary law

Customary law

A legal custom is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law".

Civil procedure

Civil procedure

Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits. These rules govern how a lawsuit or case may be commenced; what kind of service of process is required; the types of pleadings or statements of case, motions or applications, and orders allowed in civil cases; the timing and manner of depositions and discovery or disclosure; the conduct of trials; the process for judgment; the process for post-trial procedures; various available remedies; and how the courts and clerks must function.

Lex Canuleia

Lex Canuleia

The lex Canuleia, or lex de conubio patrum et plebis, was a law of the Roman Republic, passed in the year 445 BC, restoring the right of conubium (marriage) between patricians and plebeians.

Concept of laws

• ius civile, ius gentium, and ius naturale – the ius civile ("citizen law", originally ius civile Quiritium) was the body of common laws that applied to Roman citizens and the Praetores Urbani, the individuals who had jurisdiction over cases involving citizens. The ius gentium ("law of peoples") was the body of common laws that applied to foreigners, and their dealings with Roman citizens. The Praetores Peregrini were the individuals who had jurisdiction over cases involving citizens and foreigners. Jus naturale was a concept the jurists developed to explain why all people seemed to obey some laws. Their answer was that a "natural law" instilled in all beings a common sense.
• ius scriptum and ius non-scriptum – meaning written and unwritten law, respectively. In practice, the two differed by the means of their creation and not necessarily whether or not they were written down. The ius scriptum was the body of statute laws made by the legislature. The laws were known as leges (lit. "laws") and plebiscita (lit. "plebiscites," originating in the Plebeian Council). Roman lawyers would also include in the ius scriptum the edicts of magistrates (magistratuum edicta), the advice of the Senate (Senatus consulta), the responses and thoughts of jurists (responsa prudentium), and the proclamations and beliefs of the emperor (principum placita). Ius non-scriptum was the body of common laws that arose from customary practice and had become binding over time.
• ius commune and ius singulare – Ius singulare (singular law) is special law for certain groups of people, things, or legal relations (because of which it is an exception from the general rules of the legal system), unlike general, ordinary, law (ius commune). An example of this is the law about wills written by people in the military during a campaign, which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances.
• ius publicum and ius privatum – ius publicum means public law and ius privatum means private law, where public law is to protect the interests of the Roman state while private law should protect individuals. In the Roman law ius privatum included personal, property, civil and criminal law; judicial proceeding was private process (iudicium privatum); and crimes were private (except the most severe ones that were prosecuted by the state). Public law will only include some areas of private law close to the end of the Roman state. Ius publicum was also used to describe obligatory legal regulations (today called ius cogens—this term is applied in modern international law to indicate peremptory norms that cannot be derogated from). These are regulations that cannot be changed or excluded by party agreement. Those regulations that can be changed are called today ius dispositivum, and they are not used when party shares something and are in contrary.

Public law

Cicero, author of the classic book The Laws, attacks Catiline for attempting a coup in the Roman Senate.

The Roman Republic's constitution or mos maiorum ("custom of the ancestors") was an unwritten set of guidelines and principles passed down mainly through precedent. Concepts that originated in the Roman constitution live on in constitutions to this day. Examples include checks and balances, the separation of powers, vetoes, filibusters, quorum requirements, term limits, impeachments, the powers of the purse, and regularly scheduled elections. Even some lesser used modern constitutional concepts, such as the block voting found in the electoral college of the United States, originate from ideas found in the Roman constitution.

The constitution of the Roman Republic was not formal or even official. Its constitution was largely unwritten, and was constantly evolving throughout the life of the Republic. Throughout the 1st century BC, the power and legitimacy of the Roman constitution was progressively eroding. Even Roman constitutionalists, such as the senator Cicero, lost a willingness to remain faithful to it towards the end of the Republic. When the Roman Republic ultimately fell in the years following the Battle of Actium and Mark Antony's suicide, what was left of the Roman constitution died along with the Republic. The first Roman emperor, Augustus, attempted to manufacture the appearance of a constitution that still governed the Empire, by utilising that constitution's institutions to lend legitimacy to the Principate, e.g., reusing prior grants of greater imperium to substantiate Augustus' greater imperium over the imperial provinces and the prorogation of different magistracies to justify Augustus' receipt of tribunician power. The belief in a surviving constitution lasted well into the life of the Roman Empire.

Private law

Stipulatio was the basic form of contract in Roman law. It was made in the format of question and answer. The precise nature of the contract was disputed, as can be seen below.

Rei vindicatio is a legal action by which the plaintiff demands that the defendant return a thing that belongs to the plaintiff. It may only be used when plaintiff owns the thing, and the defendant is somehow impeding the plaintiff's possession of the thing. The plaintiff could also institute an actio furti (a personal action) to punish the defendant. If the thing could not be recovered, the plaintiff could claim damages from the defendant with the aid of the condictio furtiva (a personal action). With the aid of the actio legis Aquiliae (a personal action), the plaintiff could claim damages from the defendant. Rei vindicatio was derived from the ius civile, therefore was only available to Roman citizens.

Status

A person's abilities and duties within the Roman legal system depended on their legal status (status). The individual could have been a Roman citizen (status civitatis) unlike foreigners, or he could have been free (status libertatis) unlike slaves, or he could have had a certain position in a Roman family (status familiae) either as the head of the family (pater familias), or some lower member alieni iuris (one who lives under someone else's law).

Litigation

The history of Roman Law can be divided into three systems of procedure: that of legis actiones, the formulary system, and cognitio extra ordinem. The periods in which these systems were in use overlapped one another and did not have definitive breaks, but it can be stated that the legis actio system prevailed from the time of the XII Tables (c. 450 BC) until about the end of the 2nd century BC, that the formulary procedure was primarily used from the last century of the Republic until the end of the classical period (c. AD 200), and that of cognitio extra ordinem was in use in post-classical times. Again, these dates are meant as a tool to help understand the types of procedure in use, not as a rigid boundary where one system stopped and another began.^[9]

During the republic and until the bureaucratization of Roman judicial procedure, the judge was usually a private person (iudex privatus). He had to be a Roman male citizen. The parties could agree on a judge, or they could appoint one from a list, called album iudicum. They went down the list until they found a judge agreeable to both parties, or if none could be found they had to take the last one on the list.

No one had a legal obligation to judge a case. The judge had great latitude in the way he conducted the litigation. He considered all the evidence and ruled in the way that seemed just. Because the judge was not a jurist or a legal technician, he often consulted a jurist about the technical aspects of the case, but he was not bound by the jurist's reply. At the end of the litigation, if things were not clear to him, he could refuse to give a judgment, by swearing that it wasn't clear. Also, there was a maximum time to issue a judgment, which depended on some technical issues (type of action, etc.).

Later on, with the bureaucratization, this procedure disappeared, and was substituted by the so-called "extra ordinem" procedure, also known as cognitory. The whole case was reviewed before a magistrate, in a single phase. The magistrate had obligation to judge and to issue a decision, and the decision could be appealed to a higher magistrate.

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Civil law (legal system)

Civil law (legal system)

Civil law is a legal system originating in mainland Europe and adopted in much of the world. The civil law system is intellectualized within the framework of Roman law, and with core principles codified into a referable system, which serves as the primary source of law. The civil law system is often contrasted with the common law system, which originated in medieval England. Whereas the civil law takes the form of legal codes, the law in common law systems historically came from uncodified case law that arose as a result of judicial decisions, recognising prior court decisions as legally-binding precedent.

Ius naturale

Ius naturale

Ius naturale is Latin for natural right, the laws common to all beings. Roman jurists wondered why the ius gentium was in general accepted by all people living in the Empire. Their conclusion was that these laws made sense to a reasonable person and thus were followed. All laws which would make sense to a normal person were called ius naturale.

Natural law

Natural law

Natural law is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be deduced and applied independently of positive law. According to the theory of law called jusnaturalism, all people have inherent rights, conferred not by act of legislation but by "God, nature, or reason." Natural law theory can also refer to "theories of ethics, theories of politics, theories of civil law, and theories of religious morality."

Plebeian Council

Plebeian Council

The Concilium Plebis was the principal assembly of the common people of the ancient Roman Republic. It functioned as a legislative/judicial assembly, through which the plebeians (commoners) could pass legislation, elect plebeian tribunes and plebeian aediles, and try judicial cases. The Plebeian Council was originally organized on the basis of the Curia but in 471 BC adopted an organizational system based on residential districts or tribes. The Plebeian Council usually met in the well of the Comitium and could only be convoked by the tribune of the plebs. The patricians were excluded from the Council.

Responsa

Responsa

Responsa comprise a body of written decisions and rulings given by legal scholars in response to questions addressed to them. In the modern era, the term is used to describe decisions and rulings made by scholars in historic religious law.

Ius singulare

Ius singulare

Ius singulare is Latin for "singular law". It was special law for certain groups of people, things, or legal relations. An example of this is the law about wills written by people in the military during a campaign, which are exempt of the solemnities generally required for citizens when writing wills in normal circumstances.

Ius publicum

Ius publicum

Ius publicum is Latin for public law. Public law regulated the relationships of the government to its citizens, including taxation, while ius privatum, based upon property and contract, concerned relations between individuals. The public/private law dichotomy is a structural core of Roman law and all modern western legal systems. Public law will only include some areas of private law close to the end of the Roman state.

Ius privatum

Ius privatum

Ius privatum is Latin for private law. Contrasted with ius publicum, ius privatum regulated the relations between individuals. In Roman law this included personal, property and civil law. Judicial proceeding was a private process. Criminal law was also considered private matters, except where the crimes were particularly severe.

Constitution of the Roman Republic

Constitution of the Roman Republic

The constitution of the Roman Republic was a set of uncodified norms and customs which, together with various written laws, guided the procedural governance of the Roman Republic. The constitution emerged from that of the Roman kingdom, evolved substantively and significantly—almost to the point of unrecognisability—over the almost five hundred years of the republic. The collapse of republican government and norms from 133 BC would lead to the rise of Augustus and his principate.

Res publica

Res publica

Res publicacode: lat promoted to code: la is a Latin phrase, loosely meaning 'public affair'. It is the root of the word 'republic', and the word 'commonwealth' has traditionally been used as a synonym for it; however, translations vary widely according to the context. 'Res' is a nominative singular Latin noun for a substantive or concrete thing—as opposed to 'spes', which means something unreal or ethereal—and 'publica' is an attributive adjective meaning 'of or pertaining to the public, people'. Hence a literal translation is, 'the public thing, affair' or 'the people's thing, affair'.

Cicero

Cicero

Marcus Tullius Cicero was a Roman statesman, lawyer, scholar, philosopher, and academic skeptic, who tried to uphold optimate principles during the political crises that led to the establishment of the Roman Empire. His extensive writings include treatises on rhetoric, philosophy and politics. He is considered one of Rome's greatest orators and prose stylists. He came from a wealthy municipal family of the Roman equestrian order, and served as consul in 63 BC.

Catiline

Catiline

Lucius Sergius Catilina, known in English as Catiline, was a Roman politician and soldier. He is best known for instigating the Catilinarian conspiracy, a failed attempt to violently seize control of the Roman state in 63 BC.

German legal theorist Rudolf von Jhering famously remarked that ancient Rome had conquered the world three times: the first through its armies, the second through its religion, the third through its laws. He might have added: each time more thoroughly.

— David Graeber, Debt: The First 5,000 Years

In the East

Title page of a late 16th-century edition of the Digesta, part of Emperor Justinian's Corpus Juris Civilis

When the centre of the Empire was moved to the Greek East in the 4th century, many legal concepts of Greek origin appeared in the official Roman legislation.^[10] The influence is visible even in the law of persons or of the family, which is traditionally the part of the law that changes least. For example, Constantine started putting restrictions on the ancient Roman concept of patria potestas, the power held by the male head of a family over his descendants, by acknowledging that persons in potestate, the descendants, could have proprietary rights. He was apparently making concessions to the much stricter concept of paternal authority under Greek-Hellenistic law.^[10] The Codex Theodosianus (438 AD) was a codification of Constantian laws. Later emperors went even further, until Justinian finally decreed that a child in potestate became owner of everything it acquired, except when it acquired something from its father.^[10]

The codes of Justinian, particularly the Corpus Juris Civilis (529–534) continued to be the basis of legal practice in the Empire throughout its so-called Byzantine history. Leo III the Isaurian issued a new code, the Ecloga,^[11] in the early 8th century. In the 9th century, the emperors Basil I and Leo VI the Wise commissioned a combined translation of the Code and the Digest, parts of Justinian's codes, into Greek, which became known as the Basilica. Roman law as preserved in the codes of Justinian and in the Basilica remained the basis of legal practice in Greece and in the courts of the Eastern Orthodox Church even after the fall of the Byzantine Empire and the conquest by the Turks, and, along with the Syro-Roman law book, also formed the basis for much of the Fetha Negest, which remained in force in Ethiopia until 1931.

In the West

In the west, Justinian's political authority never went any farther than certain portions of the Italian and Hispanic peninsulas. In Law codes issued by the Germanic kings, however, the influence of early Eastern Roman codes on some of these is quite discernible. In many early Germanic states, Roman citizens continued to be governed by Roman laws for quite some time, even while members of the various Germanic tribes were governed by their own respective codes.

The Codex Justinianus and the Institutes of Justinian were known in Western Europe, and along with the earlier code of Theodosius II, served as models for a few of the Germanic law codes; however, the Digest portion was largely ignored for several centuries until around 1070, when a manuscript of the Digest was rediscovered in Italy. This was done mainly through the works of glossars who wrote their comments between lines (glossa interlinearis), or in the form of marginal notes (glossa marginalis). From that time, scholars began to study the ancient Roman legal texts, and to teach others what they learned from their studies. The center of these studies was Bologna. The law school there gradually developed into Europe's first university.

The students who were taught Roman law in Bologna (and later in many other places) found that many rules of Roman law were better suited to regulate complex economic transactions than were the customary rules, which were applicable throughout Europe. For this reason, Roman law, or at least some provisions borrowed from it, began to be re-introduced into legal practice, centuries after the end of the Roman empire. This process was actively supported by many kings and princes who employed university-trained jurists as counselors and court officials and sought to benefit from rules like the famous Princeps legibus solutus est ("The sovereign is not bound by the laws", a phrase initially coined by Ulpian, a Roman jurist).

There are several reasons that Roman law was favored in the Middle Ages. Roman law regulated the legal protection of property and the equality of legal subjects and their wills, and it prescribed the possibility that the legal subjects could dispose their property through testament.

By the middle of the 16th century, the rediscovered Roman law dominated the legal practice of many European countries. A legal system, in which Roman law was mixed with elements of canon law and of Germanic custom, especially feudal law, had emerged. This legal system, which was common to all of continental Europe (and Scotland) was known as Ius Commune. This Ius Commune and the legal systems based on it are usually referred to as civil law in English-speaking countries.

Only England and the Nordic countries did not take part in the wholesale reception of Roman law. One reason for this is that the English legal system was more developed than its continental counterparts by the time Roman law was rediscovered. Therefore, the practical advantages of Roman law were less obvious to English practitioners than to continental lawyers. As a result, the English system of common law developed in parallel to Roman-based civil law, with its practitioners being trained at the Inns of Court in London rather than receiving degrees in Canon or Civil Law at the Universities of Oxford or Cambridge. Elements of Romano-canon law were present in England in the ecclesiastical courts and, less directly, through the development of the equity system. In addition, some concepts from Roman law made their way into the common law. Especially in the early 19th century, English lawyers and judges were willing to borrow rules and ideas from continental jurists and directly from Roman law.

The practical application of Roman law, and the era of the European Ius Commune, came to an end when national codifications were made. In 1804, the French civil code came into force. In the course of the 19th century, many European states either adopted the French model or drafted their own codes. In Germany, the political situation made the creation of a national code of laws impossible. From the 17th century, Roman law in Germany had been heavily influenced by domestic (customary) law, and it was called usus modernus Pandectarum. In some parts of Germany, Roman law continued to be applied until the German civil code (Bürgerliches Gesetzbuch, BGB) went into effect in 1900.^[12]

Colonial expansion spread the civil law system.^[13]

Today

Legal systems of the world. Blue is based on Roman law.

Today, Roman law is no longer applied in legal practice, even though the legal systems of some countries like South Africa and San Marino are still based on the old jus commune. However, even where the legal practice is based on a code, many rules deriving from Roman law apply: no code completely broke with the Roman tradition. Rather, the provisions of the Roman law were fitted into a more coherent system and expressed in the national language. For this reason, knowledge of the Roman law is indispensable to understand the legal systems of today. Thus, Roman law is often still a mandatory subject for law students in civil law jurisdictions. In this context, the annual International Roman Law Moot Court was developed in order to better educate the students and to network with one another internationally.^[14][15][16]

As steps towards a unification of the private law in the member states of the European Union are being taken, the old jus commune, which was the common basis of legal practice everywhere in Europe, but allowed for many local variants, is seen by many as a model.

Discover more about Legacy related topics

Ancient Rome

Ancient Rome

In modern historiography, Ancient Rome refers to Roman civilisation from the founding of the Italian city of Rome in the 8th century BC to the collapse of the Western Roman Empire in the 5th century AD. It encompasses the Roman Kingdom, Roman Republic and Roman Empire until the fall of the western empire.

David Graeber

David Graeber

David Rolfe Graeber was an American anthropologist and anarchist activist. His influential work in economic anthropology, particularly his books Debt: The First 5,000 Years (2011), Bullshit Jobs (2018), and The Dawn of Everything (2021), and his leading role in the Occupy movement, earned him recognition as one of the foremost anthropologists and left-wing thinkers of his time.

Corpus Juris Civilis

Corpus Juris Civilis

The Corpus Juris Civilis is the modern name for a collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Byzantine Emperor. It is also sometimes referred to metonymically after one of its parts, the Code of Justinian.

Byzantine law

Byzantine law

Byzantine law was essentially a continuation of Roman law with increased Orthodox Christian and Hellenistic influence. Most sources define Byzantine law as the Roman legal traditions starting after the reign of Justinian I in the 6th century and ending with the Fall of Constantinople in the 15th century. Although future Byzantine codes and constitutions derived largely from Justinian's Corpus Juris Civilis, their main objectives were idealistic and ceremonial rather than practical. Following Hellenistic and Near-Eastern political systems, legislations were tools to idealize and display the sacred role and responsibility of the emperor as the holy monarch chosen by God and the incarnation of law "nómos émpsychos", thus having philosophical and religious purposes that idealized the perfect Byzantine king.

Constantine the Great

Constantine the Great

Constantine I, also known as Constantine the Great, was Roman emperor from AD 306 to 337, the first one to convert to Christianity. Born in Naissus, Dacia Mediterranea, he was the son of Flavius Constantius, a Roman army officer of Illyrian origin who had been one of the four rulers of the Tetrarchy. His mother, Helena, was a Greek Christian of low birth. Later canonized as a saint, she is traditionally attributed with the conversion of her son. Constantine served with distinction under the Roman emperors Diocletian and Galerius. He began his career by campaigning in the eastern provinces before being recalled in the west to fight alongside his father in Britain. After his father's death in 306, Constantine became emperor. He was acclaimed by his army at Eboracum, and eventually emerged victorious in the civil wars against emperors Maxentius and Licinius to become the sole ruler of the Roman Empire by 324.

Codex Theodosianus

Codex Theodosianus

The Codex Theodosianus was a compilation of the laws of the Roman Empire under the Christian emperors since 312. A commission was established by Emperor Theodosius II and his co-emperor Valentinian III on 26 March 429 and the compilation was published by a constitution of 15 February 438. It went into force in the eastern and western parts of the empire on 1 January 439. The original text of the codex is also found in the Breviary of Alaric, promulgated on 2 February 506.

Codification (law)

Codification (law)

In law, codification is the process of collecting and restating the law of a jurisdiction in certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.

Byzantine Empire

Byzantine Empire

The Byzantine Empire, also referred to as the Eastern Roman Empire or Byzantium, was the continuation of the Roman Empire primarily in its eastern provinces during Late Antiquity and the Middle Ages, when its capital city was Constantinople. It survived the fragmentation and fall of the Western Roman Empire in the 5th century AD and continued to exist for an additional thousand years until the fall of Constantinople to the Ottoman Empire in 1453. During most of its existence, the empire remained the most powerful economic, cultural, and military force in Europe. The terms "Byzantine Empire" and "Eastern Roman Empire" were coined after the end of the realm; its citizens continued to refer to their empire as the Roman Empire, and to themselves as Romans—a term which Greeks continued to use for themselves into Ottoman times. Although the Roman state continued and its traditions were maintained, modern historians prefer to differentiate the Byzantine Empire from Ancient Rome as it was centred on Constantinople instead of Rome, oriented towards Greek rather than Latin culture, and characterised by Eastern Orthodox Christianity.

Leo III the Isaurian

Leo III the Isaurian

Leo III the Isaurian, also known as the Syrian, was Byzantine Emperor from 717 until his death in 741 and founder of the Isaurian dynasty. He put an end to the Twenty Years' Anarchy, a period of great instability in the Byzantine Empire between 695 and 717, marked by the rapid succession of several emperors to the throne. He also successfully defended the Empire against the invading Umayyads and forbade the veneration of icons.

Basil I

Basil I

Basil I, called the Macedonian, was a Byzantine Emperor who reigned from 867 to 886. Born a lowly peasant in the theme of Macedonia, he rose in the Imperial court. He entered into the service of Theophilitzes, a relative of Emperor Michael III, and was given a fortune by the wealthy Danielis. He gained the favour of Michael III, whose mistress he married on the emperor's orders, and was proclaimed co-emperor in 866. He ordered the assassination of Michael the next year. Despite his humble origins, he showed great ability in running the affairs of state. He was the founder of the Macedonian dynasty. He was succeeded upon his death by his son Leo VI.

Basilika

Basilika

The Basilika was a collection of laws completed c. 892 AD in Constantinople by order of the Eastern Roman emperor Leo VI the Wise during the Macedonian dynasty. This was a continuation of the efforts of his father, Basil I, to simplify and adapt the Emperor Justinian I's Corpus Juris Civilis code of law issued between 529 and 534 which had become outdated. The term "Basilika" comes from Greek: Τὰ Βασιλικά meaning "Imperial Laws" and not from the Emperor Basil's name, which though shares the etymology "imperial".

Eastern Orthodox Church

Eastern Orthodox Church

The Eastern Orthodox Church, also called the Orthodox Church, is the second-largest Christian church, with approximately 220 million baptized members. It operates as a communion of autocephalous churches, each governed by its bishops via local synods. The church has no central doctrinal or governmental authority analogous to the head of the Catholic Church—the pope—but the Ecumenical Patriarch of Constantinople is recognized by them as primus inter pares. As one of the oldest surviving religious institutions in the world, the Eastern Orthodox Church has played a prominent role in the history and culture of Eastern and Southeastern Europe. The Eastern Orthodox Church officially calls itself the Orthodox Catholic Church.