Roman Law

ROMAN LAW

Roman law consists of the law of the Roman Republic and Empire, from the Twelve Tables (c. 451–450 b.c.e.) to the Corpus Juris Civilis (Body of the Civil Law) of the sixth century c.e. Within the context of Roman law, the term civil law is usually used specifically to refer to the Corpus Juris Civilis, the compilation that was ordered by Emperor Justinian I (ruled 527–565 c.e.) and directed by the jurist Tribonian.

SOURCES AND ORGANIZATION

Roman law grew amorphously from several sources over a thousand years. These sources were divided into unwritten law (ius non scriptum) and written law (ius scriptum). Unwritten law referred to custom in Roman times, although by the early modern period in Europe, customs were accepted as written law in many places. Written law for the Romans was divided into six categories: acts (leges), resolutions or plebeian statutes (plebiscita), senate resolutions (senatus consulta), imperial laws or constitutions (constitutiones principium), magistrates' edicts (edicta), and jurists' responses or interpretations (responsa prudentium). Contradictions in the laws occurred because these numerous sources were neither coordinated nor routinely collected.

The early attempts to organize Roman law included the Institutes of Gaius in the second century c.e. and the Theodosian Code under Emperor Theodosius II in 438 c.e., but these were incomplete. The final compilation of the Corpus Juris Civilis under Justinian in the sixth century was issued in four parts: the Digest (533), the collection of judicial interpretations of the laws; the Code (534), the imperial laws and rescripts Tribonian's committee chose to keep; the Institutes (533), a condensed version to be used by first-year law students; and the Novels (until 565), new imperial laws.

MEDIEVAL ROMAN LAW

Roman law continued to influence European law after the fall of the Western Roman Empire to Germanic tribal rule, but it did so not as territorial law but as merely the personal law of the section of the population claiming to be Roman rather than Germanic. Among the Germanic kingdoms of western Europe, rulers such as the Visigothic kings of Spain used vulgarized forms of Roman law for their Roman subjects. The basis for these laws was usually the Theodosian Code rather than Justinian's, since the former was disseminated before the collapse of the Western Roman Empire. Justinian's corpus was not compiled until after Roman power was largely lost in the West. Roman law also influenced western Europe, because it was used as the basis of canon (church) law in the Corpus Juris Canonici (Body of Canon Law), and Roman civil and canon law also became the basis of the ius commune, a set of legal principles generally accepted throughout Europe. Within each developing state of the late Middle Ages and the early modern period, Roman law had varying impact on local and royal laws, depending on the geographical proximity to the old Roman imperial areas and individual developments within the separate states.

Although it was taught continuously in the East, it was not until the late eleventh century that the West rediscovered the Corpus Juris Civilis of Justinian, and the text was then studied and taught at the medieval universities throughout western Europe beginning in the twelfth century. This new study of the Corpus Juris Civilis began in Bologna, Italy, at the university's law school, and it became popular for a number of reasons. The Roman Empire of Justinian and the medieval Holy Roman Empire were conflated in the minds of many. Justinian was seen as a Holy Roman Emperor and his laws as imperial legislation. In addition, twelfth-century jurists recognized that Roman law represented a high development of legal thought, and they saw Roman law as "written reason" and hence superior to other law.

University scholars not only studied the Corpus Juris Civilis, they also added their own explanations and interpretations, which often became as important as the original text. The earliest of these scholars were known as the glossators, who wrote marginal or interlinear comments called glosses on the entire text of Justinian. In this process they discovered some inconsistencies and contradictions that Tribonian's hurried committee had not managed to eliminate. Glossators tried to resolve such discrepancies by interpretation. Between 1220 and 1250 the glossator Franciscus Accursius compiled a collection of selected glosses, which became known as the Glossa ordinaria (or Magna glossa ).

Following the glossators were the commentators (or postglossators). They did not merely continue the glossators' work but also contributed their own legal knowledge by writing original commentaries on the Corpus Juris Civilis and the Glossa ordinaria. They also applied the law to their own time by writing legal opinions in response to questions concerning real cases. Two of the most significant of the early commentators were Bartolus of Saxoferrato and Baldus of Ubaldis. The commentators were most active in the fourteenth and fifteenth centuries, and, like the glossators, most were Italian.

RENAISSANCE HUMANISM AND ROMAN LAW

New approaches to Roman law developed with Renaissance humanism in the fifteenth and sixteenth centuries. Humanists applied philological techniques to the study of the Roman law to determine what it had been meant to say, and they also studied the laws and their meaning in the original context of Rome. Although begun in Italy with the work of Andrea Alciato, this movement reached its height in the French historical school of law in the sixteenth century. Because of their humanist approach, these scholars were able to see the Corpus Juris Civilis in historical context, as a product of its own time and place. They saw it as useful but not infallible, and their work identified many problems in the law itself and in the medieval studies of it. Guillaume Budé, Jacques Cujas, Hugues Doneau, and François Hotman, among others, contributed to this movement in France, as did Ulrich Zasius in Germany. Hotman's Anti-Tribonian (1567) was particularly critical of Justinian's compilation and elevated French law in its place. These scholars established the historicity of Roman law and removed its claim to authority over contemporary societies, even though it could still be seen to a certain extent as "written reason."

ROMAN LAW IN FRANCE, GERMANY, AND GREAT BRITAIN

France. Italy and southern France were the areas most continuously influenced by Roman law because they had been governed by the Romans themselves and by Germanic versions of Roman law codes. These were also areas where universities developed early, as did Renaissance humanism. Southern France had adopted Roman law and was known as the land of the written law (pays de droit écrit), while the northern two-thirds of France was subject to diverse local customary laws (pays de droit coutumier). This caused some tension, and French legal humanists tried to resolve some of the problems by carefully applying Roman law. French kings continually tried to increase the uniformity of the country's laws in the sixteenth through eighteenth centuries. Roman law sometimes provided the source of these common laws, but so did the Custom of Paris, which was often seen as a more appropriate source for France. Partly under influence of the "written reason" of the Corpus Juris Civilis, the French tried to codify their customs, frequently using the organization of Roman law as a model for the structure, if not for the laws themselves. This is particularly notable in Antoine Loisel's Institutes Coutumieres (1607) and Étienne Pasquier's L'interprétation des institutes de Justinian (1609).

Germany. In Germany, the reception of Roman law began around 1500, when the ius commune was given precedence over local customs in the imperial supreme court. Use of Roman law in this form was particularly attractive in the Holy Roman Empire, because there were over three hundred independent local jurisdictions, some quite backward administratively. Roman law provided a model for them and also created some form of unity in the fragmented empire.

Great Britain. Scotland had introduced Roman law indirectly in the form of ius commune, because it was distinct from English common law, and the Scots wished to establish their independence from English control. English common law developed independently from Roman law, but some courts in England, the Equity and Admiralty Courts, for example, were influenced by Roman law, at least in the form of the ius commune or through canon law, which church courts continued to use in England even after the Reformation.

THE WIDER INFLUENCE OF ROMAN LAW

The growth of the influence of Roman law was a gradual and continuous historical process; the law was adapted to territories well beyond those its Roman originators could have imagined and to uses of which they had not conceived. The Spanish acceptance of Roman law meant that it spread beyond western Europe and came to the Spanish territories of the New World.

Roman law was used to support various, even opposing, ideas. For instance, its maxims could support both absolutism and popular government: while the maxim "What pleases the prince has the force of law" (Quod principi placuit legis habet vigorem) was used as an argument for royal absolutism in various countries, on the other hand, "What touches all must be decided by all" (Quod omnes tangit, ab omnibus approbetur) was used to justify representative government and even rebellion against oppressive regimes. Roman law's influence persisted beyond the end of the early modern period, as it served as the main model for Napoleon Bonaparte's Civil Code (1804).

See also Budé, Guillaume ; Humanists and Humanism .

BIBLIOGRAPHY

Primary Sources

Krueger, Paul, ed. Justinian's Institutes. Translated by Peter Birks and Grant McLeod. Ithaca, N.Y., 1987. The Institutes is the Roman law work that is most accessible to the beginner in legal studies. This is one of several editions.

Mommsen, Theodor, and Paul Krueger, eds. The Digest of Justinian. 4 vols. Philadelphia, 1985. English translation edited by Alan Watson. The Latin and English texts are on opposing pages.

Scott, S. P., trans. and ed. The Civil Law: Including the Twelve Tables, the Institutes of Gaius, the Rules of Ulpian, the Opinions of Paulus, the Enactments of Justinian, and the Constitutions of Leo. 17 vols. in 7. Cincinnati, Ohio, 1932. Reprint, New York, 1973.

Watson, Alan, ed. The Digest of Justinian. 2 vols. Philadelphia, 1998. Revision of Watson's 1985 English translation.

Secondary Sources

Bellomo, Manlio. The Common Legal Past of Europe, 1000–1800. Translated by Lydia G. Cochrane. Washington, D.C., 1995.

Caenegem, R. C. van. An Historical Introduction to Private Law. Translated by D. E. L. Johnson. Cambridge, U.K., and New York, 1988.

Merryman, John Henry. The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America. 2nd ed. Stanford, 1985.

Watson, Alan. Roman Law and Comparative Law. Athens, Ga., 1991.

Kathleen A. Parrow