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jurisprudence:roman-jurisprudence

Evolution of The Roman Jurisprudence

The development of Roman law comprises more than a thousand years of jurisprudence - from the Twelve Tables (c. 439 BC) to the Corpus Juris Civilis (AD 529) ordered by Emperor Justinian I. This Roman law, the Justinian Code, was effective in the Eastern Roman (Byzantine) Empire (331-1453). It also served as a basis for legal practice in Continental Europe, as well as in Ethiopia, and most former colonies of European nations, including Latin America.

In Germany, Roman law practice remained longer, having been the Holy Roman Empire (963-1806); thus, the great influence upon the civil law systems in Europe. Moreover, Roman law also influenced the English and North American Common Law.

Division of society

The citizens of Rome were divided into two classes

  1. patricians, the elite class who ruled Roman society, and
  2. plebeians, the common people.

A group of patrician men called ‘pontiffs’ made decisions and ruled in questions of customary law. Over time, plebeians came to see that because of the disparity between their positions, patricians tended to have some advantage in the legal decisions made by the pontiffs who were their equals in status and power. Hence, the dissatisfaction grew on the issue of the arbitrariness of the decisions made. The plebeians raised the demand of writing down of the laws, so that they might better anticipate the decisions made by the patrician pontiffs and understand their basis in the established law.

Emergence of jurists

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 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.

Among the famous jurists of the republican period is Quintus Mucius Scaevola. He wrote a voluminous treatise on all aspects of the law, which was very influential in later time.

Servius Sulpicius Rufus, a friend of Marcus Tullius Cicero was the other noted jurist.

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.

Jurists’ contribution

The jurists performed 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, according to which specific proceedings were conducted. Some jurists also held high judicial and administrative offices themselves.

Praetor’s edict

The jurists also produced all kinds of legal commentaries and treatises. 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 onward. 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 Domitius Ulpianus.

Praetor was a title granted by the government of Ancient Rome to men acting in one of two official capacities: the commander of an army; or, an elected magistrate, assigned various duties.

The Law of the Twelve Tables

The Law of the Twelve Tables was the ancient legislation that stood at the foundation of Roman Law. The Law of the Twelve Tables formed the centerpiece of the constitution of the Roman Republic and the core of the mos maiorum (custom of the ancestors).

Lex Aquilia

Another important statute from the Republican era is the Lex Aquilia of 286 BC. It may be regarded as the root of modern tort law.

Custom of the Ancestors

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.1)

The Justinian’s Code

By the reign of the Emperor Justinian-I (ruled 527-565 CE), the vast territories of the Roman Empire in Europe, North Africa, and the East had for centuries been politically and culturally divided into the Western Empire and the Eastern, or Byzantine Empire. Like other Roman emperors before him, Justinian faced the challenge of maintaining control and creating a sense of unity among far-flung territories where other cultures and languages besides Latin (such as Greek) predominated.

One of the ways that Justinian sought to unify the empire was through law. He formed a commission of jurists to compile all existing Roman law into one body, which would serve to convey the historical tradition, culture, and language of Roman law throughout the empire. This compilation is sometimes referred to as Justinian’s Code.

The compilation of Justinian actually consisted of three different original parts: the Digest (Digesta), the Code (Codex), and the Institutes (Institutiones)

  1. The Digest (533 CE) collected and summarized all of the classical jurists’ writings on law and justice.
  2. The Code (534 CE) outlined the actual laws of the empire, citing imperial constitutions, legislation and pronouncements.
  3. The Institutes (535 CE) was a smaller work that summarized the Digest, intended as a textbook for students of law.

A fourth work, the Novella (Novellae), was not a part of Justinian’s project. It was created separately by legal scholars in 556 CE to update the Code with new laws created after 534 CE and summarize Justinian’s own Constitution.

Revival of Roman law

The compilation of Justinian is widely considered the emperor’s greatest contribution to the history of Western society. Though largely forgotten for several centuries after the fall of the Western Empire, Roman law experienced a revival that began at the University of Bologna, Italy, in the eleventh century and spread throughout Europe. Surviving manuscript copies of Justinian’s compilation were rediscovered, systematically studied and reproduced.

Corpus Juris Civilis

These new editions of the compilation, which were given the name Corpus Juris Civilis (body of civil law), became the foundational source for Roman law in the Western tradition. All later systems of law in the West borrowed heavily from it. This included the civil law systems of Western continental Europe, Latin America, and parts of Africa and to a lesser but still notable extent, the English common law system, from which American law is principally derived.2)

Influence of Roman Law in Europe

By the 16th century, Roman law was in force throughout most of Europe. However, in the process of adoption, many Roman rules were mixed up or changed to better suit the legal norms of the various European nations. In general, the rules that were applied by the European countries at that period were identical to the Roman law from Justinian’s time. Nonetheless, the law that has evolved was common to the most of the European countries and so it was called Ius Commune, i.e., the Common Law. In this form, Roman law was in force in many countries until national codes were later created in 18th and 19th centuries. For example, in Germany, Roman law remained the primary legal source until 1900 when the German Civil Code was first introduced.

Today, the Roman law has been replaced by modern codes. These codes were created by transmitting the rules of Roman law and placing them in a framework, which provided a modern, systematic order. This is particularly true as regards the German Civil Code. This is equally true concerning the most modern European legal systems and Constitutions. However, some Roman rules were implemented directly and even today; they apply to all of us. Roman law has had an enormous influence on the development of law in Europe and in what is referred to as Continental Law in general. Roman law remains a compulsory subject in our law faculties and modern studies. We still refer to that very same old Roman law even today.

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored more than 40 books on Law.

1)
Law in Ancient Rome: Crystalinks
2)
The Regents of the University of California: The Robbins Religious and Civil Law Collection


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Created on 2021/01/29 17:26 by LawPage • Last modified on 2021/01/29 17:26 by LawPage